1 1 (June 22, 2020)

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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

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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

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