Posted on December 20, 2022
On Wednesday on November 30, 2022, the U.S. Fish and Wildlife Service (USFWS) announced a final rule to reclassify the northern long-eared bat (NLEB) as endangered under the Endangered Species Act (ESA or the Act). The reclassification removes the species-specific rule issued under section 4(d) of the Act. The final rule takes effect on January 30, 2023.
What does this mean for your project?
For wind projects, previously the 4(d) rule allowed incidental take resulting from operating wind turbines, but now all incidental take from wind energy related mortality is prohibited without a federal incidental take permit. Wind energy projects may move forward after companies develop a habitat conservation plan to minimize and mitigate their impacts to NLEB. The USFWS has developed a short-term habitat conservation plan template in use for streamlining the permitting process. USFWS is also developing voluntary guidance for wind facilities that allows them to operate in a manner that promotes bat conservation and avoids take. USFWS has indicated that existing projects with ESA compliance in place or completed by end of 2022 would not be impacted by the NLEB reclassification.
For all renewable energy projects, the reclassification also changes restrictions on tree clearing activities. Previously the 4(d) rule only prohibited incidental take that may occur from tree removal activities within 150 feet of a known occupied maternity roost tree during the pup season (June 1st through July 31) or within .25 miles of a hibernation site year-round.
The final rule is less clear on what is prohibited incidental take associated with tree clearing. The final rule lists 14 activities that are not likely to violate the Act. These include projects with “minimal tree clearing” outside of “suitable forested/wooded habitat”, and projects with “insignificant amounts” of “suitable forested/wooded habitat” who cut trees during the hibernation period (typically November through March) and the modification of habitat does not significantly impact the species. The only clear activities that do not violate the Act are activities (except wind turbine operation) in an area where a negative presence/probable absence survey result was obtained using the most recent version of the range-wide northern long-eared bat survey guidance and with USFWS approval of the proposed survey methods and results. Therefore, all projects may benefit from presence/probable absence surveys to ensure the project would not be in violation of the Act during tree clearing activities.
For more information on the final rule visit the USFWS website.