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1 1 (June 22, 2020)

handle is hein.crs/govdhyy0001 and id is 1 raw text is: June 22, 2020 Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act On June 4, 2020, President Trump is sued Executive Order (E.O.) 13927 on AcceleratingtheNation's Economic Recovery fromthe COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities. The President declared the COWlD-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 federal departments 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 Section 7 ofthe 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 50C.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 ofperennialinterest to some Members of Congress and other stakeholders. Any agency actions related to infrastructure investment or other economic recovery, such as those describedin the E.O., that could affect threatened or endangered species or critical habitat are likely subject to Section 7 consultation. This In Focus provides a summary of ESA Section 7 interagency consultation requirements, 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 potential policy and leg al considerations. Section 7 of the ESA requires federal agencies to ensure that their discretionary actions and actions bynonfederal entities that require approvals, permits, or funding from those agencies are not likely to jeopardize the continued existence of threatened or endangered species (listed species) or adversely modify designated critical habitat, 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 have delegated this authority to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (hereinafter, the Services), respectively. The consultation process begins with the agency requesting the Service(s) to identify any listed species (or species proposed to be listed) that are present in the area affected by the action. If such species may be present, the agency lmust complete a biological assessment to identify possible impacts fromthe proposed action on listed species or critical habitat. Agencies may engage in informal consultation with the Service(s) to determine whether their proposed actions may affect listed species or critical habitat. Informal consultations consist ofcorrespondence 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 60 days. 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 andpruden ta lternatives (RPAs) to the proposed action if the action is likely to jeopardize any listed species or adversely modify critical habitat. 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) of listed species. Ifthe Service(s) anticipates an incidental take (i.e., the take of a listed species dueto an otherwise lawful action) fromthe action, the BiOp also nay 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 adverse modification 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, theESA generally requires the Service(s) to complete the consultation and is sue a BiOp within 90 days, but the act allows the Service(s) and the agency to agree to a longer period. For consultations involving a nonfederal party, any extension that is longer than 60 days requires the nonfederalparty's permission. . ,7 co,,,,a6',, In 1986, the Services promulgated ajoint 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 s till mu s t ensure, however, that they satisfy Section 7 obligations. The Services did not comprehensively define A A '2 k y\

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