U.S. Fish and Wildlife Service Proposes “Endangered” Listing for Northern Long-Eared Bat

On 23 March 2022, the U.S. Fish and Wildlife Service (the Service) issued a proposed rule (Proposed Rule) to reclassify the northern long-eared bat from a threatened species to an endangered species below the Endangered Species Act.1 The Service beforehand listed the northern long-eared bat (NLEB) as threatened due to the devastating impacts to the species from white nostril syndrome (WNS) and issued an ESA Part 4(d) rule permitting an incidental “take” of NLEB topic to sure circumstances. If the Proposed Rule is finalized, the 4(d) rule will stop to use and shall be changed by the Endangered Species Act (ESA) Part 9’s full take prohibition. The Proposed Rule could have main implications for power infrastructure growth all through the U.S., together with—and particularly—wind power growth.

stakeholders might weigh in on specific points throughout the remark interval, which is open now and closes on 23 Could 2022. The Service has additionally set a public informational assembly and public listening to from 6:00 p.m. – 7:00 p.m. CT and 7:30 p.m. – 8:30 p.m. CT on 7 April 2022.

THE SERVICE’S NLEB UPLISTING PROPOSAL

For greater than ten years, the Service has grappled with how you can deal with the WNS that has devastated the NLEB inhabitants. In 2015, the Service listed the NLEB as “Threatened”. The accompanying 4(d) rule created take exemptions for actions akin to growth and operation of power initiatives throughout the WNS zone as long as initiatives didn’t (1) end in an incidental take of bats in hibernacula, (2) alter entrances or interiors of recognized hibernacula, or (3) end in tree-removal in proximity to recognized hibernacula or maternity roosts.2

In 2020, the U.S. District Courtroom for the District of Columbia rejected the Service’s resolution to keep up the NLEB’s threatened standing fairly than uplisting it to endangered.3 The courtroom remanded the Service’s itemizing resolution to rethink its dedication and both maintains the established order for the NLEB as threatened or record it as endangered. The courtroom, nonetheless, didn’t vacate the Service’s itemizing resolution or the 4(d) rule, that means these selections stay in place till the Service points a brand new itemizing resolution.

Within the Proposed Rule, the Service defined the end result of its assessment on remand: it will be uplisting NLEB to endangered. The first foundation for the Service’s dedication was WNS: “WNS has been the foremost stressor on the northern long-eared bat for more than a decade … WNS has caused estimated northern long-eared bat population declines of 97–100% across 79% of the species’ range … [and] there are no proven measures to reduce the severity of [its] impacts.”4 The Service famous a number of different stressors contributing to NLEB inhabitants declines, together with wind power mortality, the consequences of local weather change, and habitat loss.5

IMPLICATIONS OF A NLEB ENDANGERED CLASSIFICATION

The implications of a NLEB uplisting are far-ranging, however this modification could also be felt most within the wind power growth world. An endangered itemizing would create important new regulatory burdens for wind power builders. New and current initiatives can be required to show compliance with the ESA and decrease and/or mitigate take of NLEB. This provides a big step to the siting and growth course of for new wind power initiatives. Relying on undertaking location, builders could also be required to acquire an ESA Part 10 incidental take allow and accompanying habitat conservation plan. This may set again growth timelines and add expense to new initiatives, however it may additionally end in substantive restrictions on the timing and most velocity of turbine operations. That in flip has an impression on the undertaking’s backside line as a result of it may cut back technology capability for the lifetime of the undertaking. Even the place an HCP shouldn’t be required, initiatives that require different federal permits, akin to Clear Water Act permits, might require session with the Service to make sure the undertaking doesn’t jeopardize NLEB. This too can lead to operational restrictions and/or added expense and delay.

Many initiatives have already obtained permits demonstrating ESA compliance. As of March 2022, the Service acknowledges that the wind power trade has 16 habitat conservation plans for NLEBs in place and 13 extra in growth.6 In its press release saying the Proposed Rule, the Service indicated that current initiatives with ESA compliance in place or accomplished by finish of 2022 wouldn’t be impacted by the NLEB reclassification.7 Nevertheless, regardless of the Service’s assurances, there’s potential for the Service to reopen current incidental take permits and HCPs—significantly these for initiatives not accomplished by the tip of 2022—to make sure consistency with the brand new itemizing resolution. Whether or not an HCP may very well be reopened for this cause relies upon largely on the phrases of the particular HCP.

Trying forward, new safeguards for the NLEB might end in elevated prices associated to the positioning choice for wind power initiatives, together with wind turbine places and baseline assessments for growth areas. The reclassification will enhance regulatory burdens for builders post-construction for monitoring and mitigation of NLEBs. As well as, because the Service works in the direction of finalizing endangered standing for the NLEB, important habitat shall be established. The placement of important habitat will additional complicate wind undertaking siting and allowing, limiting the situation and vary of wind energy services within the NLEB’s vary.

The Proposed Rule comes at a time when the Biden Administration is implementing coverage to scale-up renewable power deployment throughout the nation.8 The itemizing might contribute to staffing bottlenecks throughout the Service that would additional sluggish growth timelines and threaten the Biden Administration’s plan to extend wind energy technology. Navigating this new world would require cooperation and proactive negotiations with the Service with a view to decrease impacts on the NLEB with out compromising important infrastructure wants. stakeholders ought to submit feedback on the Proposed Rule earlier than 23 Could 2022.

ENDNOTES

1 See typically Endangered and Threatened Wildlife and Vegetation; Endangered Species Standing for Northern Long-Eared Bat, 87 Fed. Reg. 16,442 (Mar. 23, 2022) (to be codified in 50 C.F.R. Half 17).

2 For extra on the Service’s 4(d) rule, see Ok&L Gates’ prior alert on that subject.

3 Middle for Organic Variety v. Everson, 435 F. Supp. 3d. 69 (D.D.C. 2020). For extra on the courtroom’s remand of the Service’s threatened itemizing resolution and 4(d) rule, see Ok&L Gates’ prior alert on that subject.

4 Id. at 16446, 16448.

5 Id. (“In 2020, northern long-eared bats were at risk from wind mortality in approximately 49% of their range, based on the areas where wind turbines were in place and operating,” most of which is “caused by direct collisions with moving turbine blades.”)

6 See USFWS, Service proposes to reclassify northern long-eared bat as endangered below Endangered Species Act, Press Launch, Mar. 22, 2022 out there here.

7 Id. (“Many wind energy and transportation projects already have ESA compliance in place that will remain if reclassification to endangered status is finalized. For instance, the Service has completed a programmatic consultation with the Federal Highway Administration, the Federal Railroad Administration and the Federal Transit Administration that covers transportation projects throughout the entire range of the northern long-eared bat. As such, projects covered under this consultation and completed before the end of the year would not be impacted by the reclassification.”)

8 The White Home, Truth Sheet: Biden-⁠Harris Administration Races to Deploy Clear Vitality that Creates Jobs and Lowers Prices, January 12, 2022, out there here.

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