On Tuesday November 29, 2022, the United States Fish and Wildlife Service (USFWS) published a final rule reclassifying (uplisting) the northern long-eared bat (NLEB) from threatened to endangered under the Endangered Species Act (ESA). As previously reported, this much-anticipated reclassification will greatly affect the construction of new or expansion projects, including renewable energy development, logging, and a large swath of infrastructure projects, across the United States.
The USFWS uplisting comes as the result of a 2020 US District Court for the District of Columbia ruling remanding the agency’s decision to list the NLEB as threatened for failing to fully evaluate impacts to the species. The case was brought by environmental groups that have long sought to reclassify the NLEB due to white-nose syndrome, a fungal disease that has decimated bat populations across North America. By some estimates, there has been a 97 to 100 percent population decline across the NLEB’s range—an area encompassing 37 states in the eastern and north central United States and the District of Columbia.
The impacts of the USFWS uplisting will be widespread. Currently, projects in the NLEB’s range can qualify for an exemption from the ESA’s take prohibition by complying with the NLEB Section 4(d) rule, which establishes certain area and timing restrictions for tree clearing. Compliance with the Section 4(d) rule gives projects a safe harbor to proceed without an incidental take permit or risk of an enforcement action. However, now that the endangered listing has been finalized, the Section 4(d) rule no longer applies. As a result, projects that involve potential impacts to NLEB habitats (e.g., tree clearing) will be forced to take other measures, such as curtailment or other deterrents in the case of wind energy facilities, establish that the NLEB is not present with a negative presence/probable absence survey using the most recent range-wide survey guidance with USFWS approval, or presume that the NLEB is present and apply for an incidental take permit. The summary of the rule contains a nonexclusive list of other activities that likely will or will not constitute a violation of the ESA.
While the USFWS has stated they plan to work with wind energy companies to reduce the likelihood that bats will strike turbines, the practical result of reclassification for developers will be additional time and project costs. Existing projects with ESA compliance in place or completed by the end of 2022 will not be impacted by the NLEB reclassification. However, future projects will be subject to the uplisting, which takes effect on January 30, 2023.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Tom Paul, counsel, at tpaul@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.