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1 1 (June 7, 2023)

handle is hein.crs/govelwn0001 and id is 1 raw text is: Con gressionol Research Service Informing the IegisIative diebate since 1914 June 7, 2023 Endangered Species Act (ESA) Section 7 Consultation Section 7 of the Endangered Species Act (ESA; 16 U.S.C. §1536) requires federal agencies to ensure that actions they undertake, authorize, or fund are not likely to jeopardize threatened or endangered species (i.e., listed species) or adversely modify designated critical habitat for listed species. To satisfy this mandate, Section 7 generally requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS)-together, the Services-when their proposed actions may affect listed species or critical habitat. FWS administers the ESA for terrestrial, freshwater, and catadromous species, and NMFS administers the act for marine and anadromous species. A multistep process, generally referred to as Section 7 consultation, is used to evaluate the effects of agency actions on listed species and critical habitat and to consider alternative actions that could minimize those effects. Quahfying Federal Agency Actions The Section 7 consultation requirements apply to any action authorized, funded, or carried out by federal agencies. The Services' implementing regulations for the ESA interpret the term action to include all activities or programs of any kind that federal agencies authorize, fund, or carry out in whole or in part. Actions can include undertaking federal projects; granting federal permits, licenses, contracts, rights-of-way, leases, or funding to nonfederal entities; and promulgating federal regulations. As interpreted by the Services, not all agency actions are subject to Section 7 requirements. Section 7 generally applies to discretionary actions. Nondiscretionary federal actions (i.e., actions directed by Congress in legislation) may not require Section 7 consultation. Consultation Process The agency proposing the action (or, in some cases, its delegated nonfederal representative) is often called the action agency. The action agency, and any applicable nonfederal entities, must determine whether listed species or critical habitat may be present in the action area (area affected by the action). The ESA requires action agencies to request information from the Services as to whether listed or proposed species or critical habitat may be present. If the action agency determines that listed species or critical habitat are not present in the action area, consultation with the Services generally is not required. Biological Evaluation of Effects When listed species or critical habitat are or may be present in the action area, the action agency typically must determine whether the proposed action may affect any listed species or critical habitat that are present. The process of evaluating possible effects of the action is generically referred to as a biological evaluation. If the project constitutes a major construction activity, Section 7 requires the action agency to conduct an evaluation known as a biological assessment (BA). The BA must be completed before any contract for construction is entered into and before construction is begun with respect to such action. The action agency prepares the BA, and its contents depend on the nature of the action. A BA may include a description of the proposed action; analyses of the action's effects on species and critical habitat, including cumulative effects and any studies conducted to assess the effects; expert opinions; reviews of scientific literature; and analyses of the effects of any alternative actions the federal agency considered. An action agency may opt to conduct a BA even if the project is not a major construction activity. Through the biological evaluation, whether a BA or otherwise, the action agency determines whether the action is likely to adversely affect any listed species or critical habitat. If the agency concludes the action is not likely to adversely affect listed species or critical habitat, and the Services concur, further consultation generally is not required. Alternatively, if the action agency determines a proposed action may adversely affect listed species or critical habitat, then the agency generally must initiate informal or formal consultation with the Service(s) with jurisdiction over the species that may be affected. Informal Consultation Informal consultation is an optional process that ESA regulations provide to help action agencies determine whether formal consultation is required. During informal consultation, the action agency may correspond and meet with one or both of the Services about a proposed action. Informal consultation may be initiated before or after the biological evaluation is complete. Informal consultation gives the Services an opportunity to suggest ways the action agency could modify the proposed action to avoid any anticipated adverse effects on listed species or critical habitat. Informal consultations have significantly outnumbered formal consultations under the ESA. If the action agency concludes the action is not likely to adversely affect listed species or critical habitat, and the relevant Service(s) concurs in writing, the consultation process ends. Formal Consultation If the action agency or Services conclude the action is likely to adversely affect listed species or critical habitat, either through a BA or in informal consultation, the action agency generally must initiate formal consultation. At that point, neither the action agency nor any nonfederal entity may irreversibly commit resources that could potentially

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