On November 30, 2022, the U.S. Fish and Wildlife Service (“Service”), published a final rule reclassifying the northern long-eared bat (NLEB) as an endangered species under the Endangered Species Act (the “Reclassification”). With the Reclassification, the regulatory status of the NLEB has come full circle since the Service first proposed to list NLEB as endangered in October 2013. After considering comments on the initial proposal, the Service issued a final rule in April 2015 listing the NLEB as threatened and establishing an interim Section 4(d) rule that exempted certain activities from the incidental take prohibition under the Act while providing measures for the conservation of the species. The Section 4(d) rule was finalized in January 2016 and the Service issued a “not-prudent” determination for NLEB critical habitat in April 2016. The Reclassification is the product of a January 2020 court order that remanded the Service’s April 2015 threatened listing.
Under the Act, the Service may determine that a species is an endangered or threatened species because of any of five factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. The Service determined that the Reclassification is necessary due to the significant impacts of white nose syndrome (WNS) on the NLEB – Factor 3. Notably, the Reclassification indicates that 43 States and 8 Canadian provinces have confirmed or suspected presence of Pseudogymnoascus destructans (Pd), the fungus that causes WNS, and that there is no known mitigation or treatment strategy to slow the spread of Pd or to treat WNS in bats.
In reaching the decision to reclassify the NLEB from threatened to endangered, the Service explained that “available evidence, including both winter and summer data, indicates northern long-eared bat abundance has and will continue to decline substantially under current demographic and stressor conditions, primarily driven by the effects of WNS.” The Service also identified other factors affecting the NLEB’s viability, albeit to a much lesser extent than WNS, including wind energy mortality, effects from climate change, and habitat loss.
The Reclassification lists 14 activities which the Service determined are unlikely to result in a take of the species in violation of Section 9(a)(1) of the Act. Such activities include, but are not limited to:
- Minimal tree removal and vegetation management activities that occur any time of the year outside of suitable forested/wooded habitat and more than 5 miles from known or potential hibernacula.
- Tree removal that occurs at any time of year in highly developed urban areas.
- Activities that may disturb northern long-eared bat hibernation locations, provided they are restricted to the active (non-hibernation) season and could not result in permanent changes to suitable or potential hibernacula.
- Wind turbine operations at facilities following a Service-approved avoidance strategy (such as curtailment, deterrents, or other technology) documented in a letter specific to the facility from the appropriate Ecological Services field office.
The Reclassification also identified 9 activities that the Service determined may result in a violation of Section 9(a)(1), including incidental take of the species without authorization pursuant to Section 7 or Section 10(a)(1)(B) of the Act, disturbance or destruction of known hibernacula due to commercial or recreational activities during known periods of hibernation, and unauthorized building and operation of wind energy facilities within areas used by the species, which results in take of the species.
Section 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The first step of recovery planning involves the Service’s development of a recovery outline, which will address the implementation of any urgent recovery actions and summarize the process for developing a full recovery plan. The Service is required to make the recovery outline available to the public within 30 days after a final listing determination. Additional information pertaining to the Reclassification is available here.
The Reclassification and the removal of the Section 4(d) rule, which become effective on January 30, 2023, and the forthcoming recovery plan will have implications on future land development projects across much of the U.S. We will continue to monitor the Service’s development and implementation of the recovery plan for the NLEB. Stay tuned.