FWS issued guidance documents related to ESA relevant bat species. The particular species, the Tricolored Bat (“TCB”) and the Northern Long-Eared Bat (“NLEB”) are present in nearly 40 states throughout the Eastern and Southern United States. In 2022, FWS proposed to list the TCB as endangered; it set an intended listing date of September 2024. Last year, FWS also upgraded the NLEB from threatened status to endangered status. On April 2, 2024, FWS issued four draft guidance documents and tools available for public review and comment: (1) Rangewide NLEB and TCB Determination Key, (2) Consultation Guidance for Development Projects; (3) Tricolored bat Wind Guidance; and (4) Sustainable Forest Management Guidance.

Most relevant to hydropower matters, the Determination Key (“DKey”) and Consultation Guidance document relate to FWS’s Information for Planning and Consultation (“IPaC”) planning tool. The Consultation Guidance, also called the voluntary environmental review process, is a recommended approach for new projects and is voluntary. The approach recommends using IPaC, which is meant to streamline ESA-requirements by providing pre-determined outcomes for specific projects as determined by a DKey. Importantly, under the DKey, the NLEBs are impacted by water-borne contaminants in surface water, which they drink, and water quality degradation can reduce insect densities, which also impacts the species. Projects involving bridge or culvert work or resulting in the creation of a new point source discharge from a facility will be excluded and ineligible for a determination under IPaC and the DKey. Similarly, actions requiring Corps permits due to direct impacts to streams likely will be impacted by these listings and guidance documents.

The tools and guidance documents are not specifically applicable to the TCB until it is listed as endangered. Nonetheless, hydropower projects in the states with TCB and/or NLEB presence may be impacted by the listing and guidance documents, which prohibit activities that alter NLEB and/or TCB hibernacula entrances: for example, actions that impact present hydrology.

Changes to the ESA regulations promulgated by the Services will go into effect prior to listing and will have impacts on the listings, critical habitat designations, and/or consultation requirements related thereto. For a full discussion of the Final Rules, click here.

Comments on the guidance documents are due May 1.