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1 1 (January 28, 2021)

handle is hein.crs/govebsi0001 and id is 1 raw text is: I flesearch Servce [d)irriIn~j th A~Ji~A$t~ del ~ su~t~ ~ 14 9 Updated January 28, 2021 Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act E.O. 13990revokedE.O.13927onJanuary20, 2021. This report, published June 22, 2020, has been editedfor length. On June 4, 2020, President Trump is sued Executive Order (E.O.) 13927 on Accelerating theNation's Economic Recovery fromthe COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities. The President declaredtheCOVID-19 outbreak a national emergency that threatens national security on March 13, 2020 (Proclamation 9994). The E.O. seeks to facilitate the nation's economic recovery fromthe national emergency by directing selected federaldepartments and agencies to use emergency and other authorities to expedite regulatory compliance for infrastructure and other projects. Section 7 of the E.O. addresses interagency consultation under Section7 of the Endangered Species Act (ESA; 16 U.S.C. § 1536). Specifically, the E.O. directs allrelevant agencies' heads to identify and pursue opportunities to use the authority provided at 50 C.F.R. §402.05 to implement alternative procedures to satisfy ESA Section 7 consultation requirements during certain emergencies. Interagency consultation requirements under Section7 of the ESA are of perennialinterest to some Members of Congress and other stakeholders. Any agency actions related to infrastructure investment or other economic recovery, such as those described in the E.O., that could affect threatened or endangered species or critical habitat arelikely subject toSection7consultation. This InFocus provides a summary of ESA Section 7 interagency consultationrequirements, including the emergencies authority at 50 C.F.R. §402.05, and an overview of Section 7 of the E.O., which addresses ESA Section 7, as well as potentialpolicy andlegalconsiderations. ESA Section 7: Interagency Consultation Section 7 of the ESA requires federal agencies to ensure that their discretionary actions and actions by nonfederal entities that require approvals, permits, or funding from those agencies are notlikely to jeopardize the continued existence of threatened or endangered species (listed species) or adversely modify designated criticalhabitat, as defined in the ESA. To meet this obligation, Section 7 of the ESA requires agencies to consult about proposed actions that may affect listed species or criticalhabitat with the Secretary of the Interior and/or the Secretary of Commerce. The Secretaries havedelegated this authority to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (hereinafter, the Services), respectively. Consultation begins by the agency requesting the Service(s) to identify any listed species (or species proposed to be listed) that are present in the area affectedby the action. If such species may be present, the agency must complete a biological assessmentto identify possible impacts fromthe proposed action onlisted species or criticalhabitat. Agencies may engage in informal consultation with the Service(s) to determine whether their proposed actions may affect listed species or criticalhabitat. Informal consultations consist of correspondence s and discussions between the agency and the Service(s) regarding the proposed action. If the agency determines the action is not likely to have an adverse effect on any listed species or critical habitat, the agency may request concurrence in writing from the Service(s). If the Service(s) concurs, further consultation generally is not needed. Regulations implementing the ESA require the Service(s) to respond to a concurrence request within 60days. This deadline may be extended by upto 60days by mutual agreement. If the agency or the Service(s) determines the action may have an adverse effectformal consultation generally is required. In a formal consultation, the Service(s) evaluates the action and is sues a biological opinion (BiOp). The BiOp may include reasonable andp rudenta lternatives (RPAs) to the proposed action if the action is likely to jeopardize any listed species or adversely modify criticalhabitat. The BiOp states whether the action would result in a take (defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, orto attempt to engagein any such conduct) oflisted species. Ifthe Service(s) anticipates an incidental take (i.e., the take of a listed species due to an otherwise lawfulaction) fromthe action, the BiOp also may include an incidental take statement (ITS). An ITS states the anticipated incidental take and provides the agency with an exemption to the ESA's prohibitions on take. Ifjeopardy to any listed species or adversemodification of critical habitat is likely and no RPAs are feasible, the agency must (1) forgo the action, (2) risk violating the ESA, or (3) obtain a formal exemption from the Endangered Species Committee. For formal consultations, the ESA generally requires the Service(s) to complete the consultation and is sue a BiOp within 90 days, but the Service(s) and the agency may agreeto alongerperiod. Forconsultations involving a nonfederalparty, any extension longer than60 days requires the nonfederal party's permis sion. Section 7 Consultation Emergencies Authority In 1986, the Services promulgated a joint regulation (50 C.F.R. §402.05) that allows agencies to conduct Section7 consultations using alternative procedures when emergency circumstances require expedited actions that would preclude advance formal consultations. The agencies still must ensure, however, that they satisfy Section 7 .conress.Ov

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