June 3, 2023

Volume XIII, Number 154


June 02, 2023

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May 31, 2023

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FWS Reclassification of Northern Long Eared Bat Goes into Effect

Effective today, 3/31/2023, the U.S. Fish and Wildlife Service (FWS) changed the classification of the Northern Long Eared Bat (NLEB) from threatened to endangered. As discussed in our December and April client alerts, this reclassification is expected to have major implications for development projects throughout the U.S. because the reclassification will require more time-intensive Endangered Species Act (ESA) Section 7 consultations and will limit the circumstances in which a take of NLEB can occur.

In conjunction with listing the NLEB as a threatened species in 2015, the FWS finalized a special rule pursuant to ESA Section 4(d) and a corresponding programmatic biological opinion (2016 PBO) that streamlined the ESA Section 7 consultation process and allowed incidental take of NLEB in many circumstances. With today’s reclassification of the NLEB, the 4(d) rule and 2016 PBO are obsolete.

To assist the thousands of ongoing or incomplete projects that have already been approved under the 4(d) framework, the FWS has developed two tools, the Interim Consultation Framework (ICF), and the NLEB Range-wide Determination Key (RD Key).

While the ICF is only available until April 1, 2024, it will assist such projects during this transition period in two important ways:

  1. It sets forth a streamlined consultation process that involves the RD Key, which will make an initial effects determination.

  2. It allows incidental take of NLEB if the FWS approves the take through an Incidental Take statement, essentially (temporarily) exempting certain projects from the ESA Section 9 prohibitions on the take of endangered species.

Notably, these tools are not available to wind projects, which require a separate consultation and for which the FWS has issued independent interim guidance.

©2023 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XIII, Number 90

About this Author

Georgia M. Bolduc Environmental Attorney Pierce Atwood Portland, ME

Georgia Bolduc is an associate in the Environmental Practice Group, where she specializes in a broad array of environmental issues, including due diligence and permitting of renewable energy projects (particularly in the solar space), hazardous and solid waste management, air emissions, wastewater discharges, natural resource issues, and zoning law.

Georgia is a recent graduate of Boston University School of Law, where she was a member of the International Law Journal, secretary of the Energy and Environmental Law Society, and pioneered...

Lisa Gilbreath, Pierce Atwood, Environmental lawyer

Lisa Gilbreath is an associate in the Environmental & Land Use and Energy Infrastructure Development, Acquisition & Financing practice groups. Lisa works on a wide variety of environmental and energy matters, offering clients strategic advice in regulatory, legislative, and judicial proceedings.

In her environmental practice, Lisa assists clients with numerous issues including energy project development permitting, energy and environmental litigation, air quality legislative and regulatory activities, air quality enforcement, hazardous substances and...

(207) 791-1397
Matthew D. Manahan, Pierce Atwood LLP, Environmental lawyer

Since 1989 Matt Manahan has worked closely with businesses to find innovative solutions to the environmental law issues they face. He provides strategic counsel in regulatory, legislative, and judicial proceedings involving a broad range of environmental and land use issues, including those relating to energy project development, transfer and development of contaminated property, water use, energy, and Native American regulatory claims.

Matt is adept at stakeholder negotiations, including with state and federal regulators, that are a necessary part of large...

(207) 791-1189