The Bats Are Out of the Cave

How did we get here?

Because of the ongoing spread of white-nose syndrome, the U.S. Fish and Wildlife Service (USFWS) listed the northern long-eared bat (NLEB) as a threatened species in April 2015. A 4(d) rule was issued for the species in January 2016, which provided Endangered Species Act Section 9 protection to the NLEB.  This 4(d) rule provided a framework to streamline Section 7 consultations for federal actions that may affect the NLEB but would not result in prohibited take of the species.  Many projects were able to proceed under a May Affect, Not Likely to Adversely Affect determination based on their adherence to winter tree removal timing.  Without a 4(d) rule, a threatened species is provided reduced protections, so it is typical for the USFWS to issue a 4(d) rule concurrently with a proposal to classify a species as threatened. Several environmental non-government organizations challenged this listing for the NLEB, which resulted in a court decision that required the USFWS to make a new listing decision by the end of 2022.

In revisiting the prior classification, which included evaluation of continued range-wide species decline, the USFWS reclassified the northern long-eared bat as endangered under the Endangered Species Act (ESA) in November 2022. This uplisting was originally set to take effect on January 30, 2023. It was extended to March 31, 2023, to allow for more time to finalize conservation tools and guidance. This provided better support for projects occurring in suitable habitats areas.

The effects of this reclassification are widespread – the northern long-eared bat is found in all or portions of 37 U.S. states and the District of Columbia.

What does this new listing mean for projects?

As the 4(d) rule is only available for threatened species, it no longer applies to the northern long-eared bat. For projects with a federal nexus (involvement of a federal authority through funding, approval, permitting, sponsorship, etc.), Section 7 of the ESA is triggered and federal agencies are required to make sure that projects do not jeopardize the continued existence of the listed species.  Consultation with the USFWS is prompted if a project may affect the NLEB, which accounts for almost any tree clearing activities proposed in affected areas.

Multiple tools have been created to assist reviewing and permitting agencies and project sponsors in association with this regulatory change.

• Rangewide Determination Key: As a replacement tool for the 4(d) rule, the USFWS has developed a Rangewide Determination Key that provides automatic verification or concurrence for some projects and actions. This Key includes project-specific questions and uses integrated NLEB roosting and hibernacula locations to arrive at a potential effect determination for the NLEB.

• Interim Consultation Framework: It is recognized that some projects will have already completed their Section 7 consultation and may have NLEB effect determinations reviewed and issued under the 4(d) rule. To ensure that these projects are not delayed, the USFWS has put together a new formal consultation framework that will facilitate the transition of these projects from the 4(d) rule to the typical Section 7 consultation process. This Interim Consultation Framework is only valid until April 1, 2024.  For permitted activities going to construction after this date, for which prior NLEB impacts and determinations were issued under the 4(d) rule, the re-initiation of consultation by a project’s lead federal agency is likely.

• Interim Wind Guidance: This document applies to new or existing land-based wind energy facilities. Changes in how these facilities are sited and/or operated can avoid or minimize the threat to NLEB.  This guidance expresses how land-based wind facility siting and operation can occur in a manner in which incidental take of NLEB is not “reasonably certain to occur.”

• Interim Forestry Modification Guidance: This document provides voluntary guidance to project sponsors with non-federal actions involving forest habitat modification to address concerns about compliance with the ESA and to promote conservation of the species.

The USFWS is also continuing to work with other agencies to update and modify prior consultation frameworks and put together procedures to streamline re-initiations of previously reviewed projects. An example of this is the updated programmatic consultation with the Federal Highway Administration, the Federal Railroad Administration and the Federal Transit Administration that covers transportation projects proposed within the range of the NLEB.

The Transition Is Real

As you will note by the use of the word “interim” in some of the documents and tools released by the USFWS in response to this uplisting, modifications to the Section 7 consultation process and the release of additional or revised guidance documents are likely. The complexity and level of consultation required for a project largely depends on the actions involved that could result in take of the NLEB and the project’s geographic location to known roost and wintering locations for the species.  The Determination Key options and guidance documents can be tricky to follow.  If you need assistance in identifying the best path forward for your project, do not hesitate to reach out to Johanna Duffy in B&L’s Ecology Group.

Next up . . . the tricolored bat. Formal listing expected soon.