As anticipated in our April 4, 2022 alert, the U.S. Fish and Wildlife Service (FWS) this week published a final rule reclassifying the northern long-eared bat (NLEB) from a threatened species to an endangered species. The NLEB faces the risk of extinction due to a fungal disease -- white-nose syndrome -- which has caused NLEB populations to decline across their 37-state range. Published on November 30, 2022, the NLEB’s new classification will take effect on January 30, 2023.

FWS’s reclassification of the NLEB will have major implications for development projects throughout the U.S., particularly in wind energy development. As an endangered species, the NLEB is now entitled to a full “take” (to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct) prohibition under Section 9 of the Endangered Species Act (ESA).

Additionally, the NLEB’s endangered species status is expected to lead to more (and more time-intensive) ESA Section 7 consultations. In preparation for these changes, the FWS is enacting tools and guidance that it will post to its NLEB webpage to help project developers identify what types of activities may result in a take under Section 9 and to streamline Section 7 consultations.