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.