Following its March 2022 proposal to uplist the northern long-eared bat (NLEB) to endangered status, U.S. Fish and Wildlife Service (FWS) finalized the proposal on November 30, 2022. In addition, the agency proposed to list the tricolored bat as endangered on September 14, 2022. FWS has also indicated that it expects to issue a proposed listing decision regarding the little brown bat in the coming months.

With respect to the NLEB, in March 2022, FWS issued a proposed rule to uplist the NLEB from threatened to endangered status. The agency’s proposal resulted from legal challenges to its 2015 decision to list the NLEB as threatened. That listing included a Section 4(d) rule, which allowed incidental take to occur within the bat’s range and habitat where white-noise syndrome, which adversely affects the NLEB, was not present, provided that certain best management practices were followed. In 2021, the U.S. Court of Appeals for the D.C. Circuit found that the agency’s 2015 listing decision failed to adequately explain why the bat was not listed as endangered, and failed to address how certain impacts, such as habitat modification permitted under the 4(d) rule, affected the NLEB. The court remanded the 2015 rule to the agency for additional consideration, but allowed both the threatened listing and the Section 4(d) rule to remain effective in the meantime.

The March 2022 proposed rule and the November final rule prohibit take of the NLEB throughout the U.S., absent coverage under an incidental take permit. A notable change from the proposed rule is that FWS created a list of actions unlikely to result in a violation of section 9 of the Endangered Species Act (ESA), if the activities are carried out in accordance with existing regulations and permit requirements. Although the agency acknowledges that the list is not exhaustive, these actions include:

• Minimal tree removal and vegetation management activities that occur any time of the year outside of suitable forested/wooded habitat and more than five miles from known or potential hibernacula;
• Insignificant amounts of suitable forested/wooded habitat removal provided it occurs during the hibernation period and the modification of habitat does not significantly impair an essential behavior pattern, such that it is likely to result in the actual killing or injury of NLEB after hibernacula;
• Tree removal that occurs at any time of year in highly developed urban areas (e.g., street trees, downtown areas);
• Wind turbine operations at facilities following an agency-approved avoidance strategy (such as curtailment, deterrents, or other technology) documented in a letter specific to the facility from the appropriate Ecological Services field office;
• Residential and commercial building construction, exterior improvements or additions, renovation, and demolition in urban areas;
• Mowing of existing (nonsuitable forested/woodland habitat) rights-of-way;
• Maintenance, repair, and replacement activities conducted completely within existing, maintained utility rights-of-way, provided there is no tree removal or tree trimming;
• Maintenance and repair activities conducted completely within existing road or rail surface that do not involve tree removal, tree trimming, or blasting or other percussive activities; and
• Activities that may disturb northern long-eared bat hibernation locations, provided they are restricted to the active (nonhibernation) season and would not result in permanent changes to suitable or potential hibernacula.

Because the NLEB is known to occur in 37 states, as well as the District of Columbia, the uplisting, which becomes effective within 60 days of the final rule’s publication (January 30), will have a significant impact. The agency explains that, during the 60 days before the decision becomes effective, it will finalize new consultation tools for the NLEB. Specifically, in the FAQ document posted on FWS’ website, the agency states it is developing a rangewide NLEB determination key (available through the agency’s Information for Planning and Consultation tool) that allows project proponents to receive automatic verification or concurrence for some actions. This key replaces the 4(d) rule determination key.

The FWS is also working on an Interim Consultation Framework to help project proponents ensure that projects in compliance with the 4(d) rule are not delayed. This new framework will facilitate the transition from the 4(d) rule to typical Section 7 consultation procedures until Spring 2024. The FWS indicates that the updated programmatic consultation with the Federal Highway Administration, the Federal Railroad Administration, and the Federal Transit Administration covering transportation projects is available, and that the Forest Service and FWS are developing a Bat Conservation Strategy that would be implemented across the Forest Service’s eastern and southern regions. The FAQ document also indicates that wind energy projects without a Habitat Conservation Plan (HCP) or ESA-compliance for the NLEB may move forward after they develop a HCP, and that a short-term HCP template is available. The agency notes it is also developing voluntary guidance for wind facilities. See NLEB Final Rule FAQs.

With respect to the tricolored bat, in September 2022, FWS issued a proposal to list the bat (Perimyotis subflavus) as an endangered species based on the best available scientific and commercial information. The listing stemmed from a 2016 petition filed by the Center for Biological Diversity and Defenders of Wildlife, which also sought designation of critical habitat for the species. In its proposal, FWS declined to designate critical habitat, noting that the tricolored bat occupies a broad geographic range encompassing a variety of forested habitat types. The FWS held a public meeting on its proposal in October 2022, and the public comment period closed on November 14, 2022. As of this drafting, the agency has received nearly 200 comments from parties who raised a variety of issues, including that the proposed rule did not adequately address the wide range of hibernacula and habitats used by the tricolored bat and the need for regional guidance to establish thresholds for certain actions that may adversely affect the species, including minimal acreage of disturbance, or establishment of population sizes to appropriately identify habitat.

Finally, the agency has indicated that it plans to issue a listing determination and critical habitat designation, if prudent, for the little brown bat, and that such a listing proposal could be issued before the end of the year.

Key Takeaways: The FWS’ bat listings are likely to have far-reaching effects on a variety of industries and will lead to more entities choosing to secure HCPs. The tools that the agency is purporting to develop will be instrumental to the transition process, and hopefully to streamlining the consultation and permitting required as a result of these listings.

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