On January 25, 2023, the U.S. Fish and Wildlife Service (FWS) announced that it is delaying the effective date of the final rule to reclassify the northern long-eared bat (NLEB) from threatened to endangered by 60 days, from January 30, 2023 to March 31, 2023.

As discussed in our December 2, 2022 and April 8, 2022 alerts, reclassification will have major implications for development projects throughout the U.S., including more time-intensive Endangered Species Act (ESA) Section 7 consultations.

Recognizing the potential for delay of projects that have utilized the ESA’s Section 4(d) rule to streamline such consultations – a streamlining that will be unavailable when the NLEB is reclassified as endangered – the FWS is developing a tool called the “Interim Consultation Framework” to help ensure that ongoing projects in compliance with the 4(d) rule are not delayed.

The FWS has delayed the effective date of its final rule because this new formal consultation framework, intended to facilitate the transition from the 4(d) rule to typical Section 7 consultation procedures, is still under development. The FWS expects that this tool will be available in early March.

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