Endangered Species Law & Policy

On Wednesday, October 23, 2024, the U.S. Fish and Wildlife Service (Service) released final guidance and tools (Final Guidance) to assist project proponents with Endangered Species Act (ESA) compliance with respect to the northern long-eared bat (Myotis septentrionalis) (NLEB) and the tricolored bat (Perimyotis subflavus) (TCB). The Final Guidance includes: (1) a step-by-step consultation guidance document which outlines a voluntary approach to streamline ESA section 7 consultation for the NLEB and/or TCB for project types other than wind turbine operation and sustainable forestry; (2) an online determination key that allows project proponents to receive automatic determinations on whether and how particular actions will affect the NLEB and/or TCB; (3) voluntary guidance on how wind energy facilities can operate in a manner such that take is not reasonably certain to occur (e.g., curtailment strategies, buffers, etc.) for both the NLEB and TCB; (4) voluntary tools for private forest owners to assist with ESA compliance related to sustainable forest management activities; and (5) updated range maps for both the NLEB and TCB. On April 1, 2024, the Service released draft versions of the Final Guidance documents and provided a 30-day period for the public to review and provide feedback.

As Nossaman previously reported, the Service issued a final rule reclassifying the NLEB from threatened to endangered under the ESA in November 2022, which ultimately took effect on March 31, 2023. On September 13, 2022, the Service issued a proposed rule to list the TCB as endangered, but the Service has not yet issued a final listing rule for the species. Therefore, while the Final Guidance automatically takes effect for the NLEB, the Final Guidance documents pertaining to the TCB will not go into effect unless and until the Service issues a final rule listing the TCB as endangered or threatened.

The Final Guidance replaces the Service’s previously issued interim guidance documents addressing the NLEB; however, the Service’s Interim Consultation Framework for the Northern Long-eared Bat remains available for use for new and ongoing projects through November 30, 2024. The Service is advising project proponents whose activities are likely to cause adverse effects to NLEB after November 30, 2024 to reinitiate consultation with the Service.