USFWS Issues Final Guidance on Northern Long-Eared Bat and Tricolored Bat

On Wednesday, October 23, 2024, the US Fish and Wildlife Service (USFWS) released final guidance and associated consultation tools (Final Guidance) to assist project proponents with Endangered Species Act (ESA) compliance for both the northern long-eared bat (NLEB) and the tricolored bat (TCB).

The Final Guidance is expansive and includes the following documents and tools:

1. Consultation guidance, which outlines voluntary steps project proponents may take to streamline ESA Section 7 consultation for the NLEB and/or TCB for project types other than wind energy facility operation and sustainable forest management activities;
2. Online determination key, which allows project proponents to receive automatic determinations on how particular actions will affect the NLEB and/or TCB;
3. Voluntary guidance for wind energy facilities that describes how these facilities can operate to try to avoid “takes” for both the NLEB and TCB;
4. Voluntary tools to assist private forest owners with ESA compliance related to sustainable forest management activities; and
5. Updated range maps for both the NLEB and TCB.

The Final Guidance replaces USFWS’ previously issued interim guidance documents addressing the NLEB; however, USFWS’ “Interim Consultation Framework for the Northern Long-Eared Bat” remains available for new and ongoing projects through November 30, 2024. USFWS is advising project proponents whose activities are likely to cause adverse effects to NLEB after November 30, 2024, to reinitiate consultation with USFWS. Importantly, the Final Guidance documents pertaining to the TCB will not go into effect unless USFWS issues a final rule listing the TCB as threatened or endangered.

While the USFWS’ Final Guidance and updated toolkit does provide project proponents with resources for evaluating their projects, time will tell how effective these resources are at streamlining project reviews.

Barclay Damon’s Environmental Practice Area attorneys will monitor how the new administration implements the Final Guidance along with all other developments at USFWS.

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, partner, 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.