Endangered Species Act (ESA) Section 7 Consultation and Infrastructure Projects

Endangered Species Act (ESA) Section 7 Consultation and Infrastructure Projects

Endangered Species Act (ESA) Section 7
August 4, 2021
Consultation and Infrastructure Projects
Erin H. Ward
Section 7 of the Endangered Species Act (ESA; 16 U.S.C. §§1531 et seq.) requires federal
Legislative Attorney
agencies (often referred to as action agencies) to ensure that actions they undertake, authorize, or

fund are not likely to jeopardize threatened or endangered species (i.e., listed species) or
R. Eliot Crafton
adversely modify designated critical habitat of listed species. To satisfy this mandate, Section 7
Analyst in Natural
generally requires action agencies to consult with the U.S. Fish and Wildlife Service (FWS) or
Resources Policy
the National Marine Fisheries Service (NMFS) (together, the Services) when their proposed

actions may affect listed species or critical habitat. Actions subject to Section 7 may include
infrastructure projects that are undertaken by action agencies or by nonfederal entities with
Pervaze A. Sheikh
federal authorization or funding. Section 7 has frequently been of interest to Congress, in part,
Specialist in Natural
because it can affect infrastructure projects.
Resources Policy

Section 7 consultation is a multistep process (see Figure) generally used to evaluate the effects of

agency actions on listed species and critical habitat and to consider alternatives to minimize those
effects, as needed. The action agency must assess whether listed species or critical habitat may be
present in the area affected by the action (known as the action area) and, if present, whether the action may affect any such
resources. The action agency or relevant nonfederal entity may opt to enter into informal consultation with the Services. The
process may conclude if the Services and action agency agree that listed species or critical habitat are not in the action area or
that the action is not likely to adversely affect listed species or critical habitat. If the action may adversely affect listed species
or critical habitat, the action agency generally must enter into formal consultation with the relevant Services to assess the
action. Formal consultation concludes with the Services issuing an opinion on the effects of the action referred to as a
biological opinion (BiOp).
A BiOp contains analyses of the likely effects of the
action on listed species and critical habitat and a
statement of a Service’s opinion as to whether the
action is likely to jeopardize listed species or
adversely modify critical habitat. The Service may
issue a no jeopardy or jeopardy BiOp. For jeopardy
BiOps, the ESA requires the Service to suggest any
reasonable and prudent alternatives (RPAs) to the
proposed action that would avoid causing jeopardy or
adverse modification. A BiOp generally also includes
an incidental take statement authorizing certain
actions that otherwise would be prohibited by Section
9 of the ESA.
The Section 7 consultation process may be expedited
or waived under certain circumstances, some of
which may apply to infrastructure projects. Action
agencies may pursue programmatic consultations for
repeated types of projects to streamline future
individual action consultations. In certain emergency situations, regulations allow federal agencies to undertake an alternative
consultation process in an expedited time frame. For actions that receive a jeopardy BiOp for which there are no RPAs, the
action agency can seek an exemption from the ESA requirements. The President may waive the Section 7 requirements for
certain types of projects in declared natural disaster areas. Congress may also include a waiver of Section 7 requirements
directly in legislation for specific projects or types of projects.
Many actions, including infrastructure projects, may comply with Section 7 without requiring informal or formal consultation
if the action agency or nonfederal entity finds that either no listed species or critical habitat are present in the action area or
that such species or critical habitat will not be affected by the action. Section 7 consultation, however, may delay an
infrastructure project or induce project modifications (either required or voluntary) to reduce its effect on listed species. In
addition, litigation over the final BiOp may delay the project.
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Contents
Introduction ..................................................................................................................................... 1
Section 7 Overview ......................................................................................................................... 2
When Is a Federal Agency Action, Including an Infrastructure Project, Potentially
Subject to Section 7 of the ESA? ........................................................................................... 2
Who Is Responsible for Compliance with Section 7 of the ESA? ............................................ 4
How Does the Consultation Process Work? .............................................................................. 5
Streamlining, Expediting, and Waiving ESA Section 7 Requirements .......................................... 11
How Can the Consultation Process Be Streamlined for Infrastructure Projects? .................... 11
How Could an Emergency Affect the Consultation Process for Infrastructure
Projects? ............................................................................................................................... 12
Can the Consultation Process Be Waived for Particular Infrastructure Projects? ................... 13
What If an Infrastructure Project May Jeopardize Listed Species or Adversely Affect
Critical Habitat and There Are No Viable Reasonable and Prudent Alternatives? .............. 15

Figures
Figure 1. ESA Section 7 Informal and Formal Consultation Process ........................................... 10
Figure 2. ESA Section 7 Emergency Consultation Process ........................................................... 13

Contacts
Author Information ........................................................................................................................ 15

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Endangered Species Act (ESA) Section 7 Consultation and Infrastructure Projects

Introduction
Section 7 of the Endangered Species Act (ESA) requires federal agencies (referred to as action
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.1 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.2 Actions subject to Section 7 may include infrastructure projects that are undertaken by
action agencies or by nonfederal entities with federal authorization or funding. Section 7 has
frequently been of interest to Congress, in part, because it can affect the implementation and cost
of infrastructure projects. This report provides an overview of the Section 7 process as well as
examples of how compliance with Section 7 may affect actions or be expedited or waived in
certain circumstances. Although this report specifically addresses infrastructure projects at times,
the Section 7 overview generally applies to any type of agency action.
Section 7 consultation is a multistep process generally used to evaluate the effects of agency
actions on listed species and critical habitat and to consider alternatives to minimize those effects,
as needed. Unless the Services and action agency determine that the action is not likely to
adversely affect listed species or critical habitat, the process concludes with the Services’ opinion
on the effects of the action (referred to as a biological opinion or BiOp), which may authorize
certain effects on listed species that would otherwise violate the ESA. Section 7 and its
implementing regulations outline procedures for this consultation process.3

1 16 U.S.C. §1536(a)(2). 16 U.S.C. §1532 defines critical habitat, endangered species, and threatened species:
(5)(A) The term “critical habitat” for a threatened or endangered species means- (i) the specific
areas within the geographical area occupied by the species, at the time it is listed in accordance
with the provisions of section 1533 of this title, on which are found those physical or biological
features (I) essential to the conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed in accordance with the provisions of section 1533 of
this title, upon a determination by the Secretary that such areas are essential for the conservation of
the species.
…
(6) The term “endangered species” means any species which is in danger of extinction throughout
all or a significant portion of its range other than a species of the Class Insecta determined by the
Secretary to constitute a pest whose protection under the provisions of this chapter would present
an overwhelming and overriding risk to man.
(20) The term “threatened species” means any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.
Other definitions related to Section 7 are found in 16 U.S.C. §1532 and 50 C.F.R. §402.02. For more information on
the ESA in general, see CRS Report R46677, The Endangered Species Act: Overview and Implementation, by Pervaze
A. Sheikh, Erin H. Ward, and R. Eliot Crafton.
2 16 U.S.C. §1536(a)(2). The U.S. Fish and Wildlife Service (FWS) is an agency within the Department of the Interior;
the National Marine Fisheries Service (NMFS), also called NOAA Fisheries, is an office within the National Oceanic
and Atmospheric Administration (NOAA), which is in the Department of Commerce. This report uses Services to refer
to FWS, NMFS, or both agencies.
3 This report uses “consultation” to refer to the process and generally qualifies consultation with either “direct,”
“informal,” or “formal” to refer to components of the process when action agencies or nonfederal entities directly
interact with one or both of the Services.
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Depending on the nature of the action, compliance may require varying levels of resources. For
some actions, the action agency may be able to demonstrate Section 7 compliance by confirming
with the Services that no listed species or critical habitat are present in the area affected by the
action (referred to as the action area). For other actions, the action agency may need to consult
with the Services to assess the potential effects of the action. In addition, litigation related to the
consultation process for the action also may delay the project.
Complying with Section 7 also may affect the nature and design of the project itself. During the
Section 7 process or as a result of it, an action agency or nonfederal entity may modify its
proposed action to reduce the effect on listed species or critical habitat. For example, a water
infrastructure project such as a dam may need to change the proposed amount of water it delivers
to irrigators to provide more instream flow for listed fish species for spawning or migration.
Further, to mitigate the effect of the water project on listed species, additional infrastructure
features may need to be built, such as fish ladders. Alternatively, an action agency may decide not
to proceed with an action if there are no viable alternatives that would not violate the ESA.
Section 7 Overview
When Is a Federal Agency Action, Including an Infrastructure
Project, Potentially Subject to Section 7 of the ESA?
Section 7 of the ESA generally requires federal agencies to ensure that “any action authorized,
funded, or carried out by such agency” does not jeopardize listed species or adversely modify
critical habitat.4 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.”5 These include
 federal projects;
 granting federal permits, licenses, contracts, rights-of-way, leases, or funding
(including grant awards) to nonfederal entities; and
 promulgation of federal regulations.6
Actions subject to Section 7 requirements may include certain infrastructure projects. There is not
a single, universal definition of infrastructure, though the term may generally be used for long-
lasting, resource-intensive systems and facilities.7 Infrastructure may refer any number of projects
and project types that are undertaken, authorized, or funded by a wide variety of federal agencies.
For example, infrastructure could include water resource and water supply projects undertaken by
the U.S. Army Corps of Engineers or the Bureau of Reclamation; or energy projects undertaken
by federal energy cooperatives such as the Tennessee Valley Authority or the Bonneville Power
Administration. Certain operations and maintenance activities may also be considered agency
actions. Infrastructure projects also could include projects subject to federal authorization, such as
interstate natural gas pipelines, liquid natural gas import/export terminals, and nonfederal

4 16 U.S.C. §1536(a)(2).
5 50 C.F.R. §402.02.
6 50 C.F.R. §402.02.
7 For additional background on infrastructure, see CRS In Focus IF10592, Infrastructure Investment and the Federal
Government, by William J. Mallett.
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hydropower projects subject to authorizations by the Federal Energy Regulatory Commission and
nuclear power plants subject to licensing by the Nuclear Regulatory Commission. Infrastructure
projects funded by federal agencies include state highway projects funded by the Federal
Highway Administration (FHWA) from the Highway Trust Fund.8
As interpreted by the Services, not all agency actions are subject to Section 7 requirements.
Section 7 generally applies to discretionary actions.9 Nondiscretionary federal actions may not
require Section 7 consultation (see text box below).10 For example, if Congress mandates that a
reservoir provide specified flows of water for certain users, those flow requirements may not be
subject to Section 7 consultation. However, if Congress mandates that an agency provide water
for certain users, but leaves how water flow should be partitioned among users to the discretion of
the agency, Section 7 requirements may apply.11 Evaluating whether a federal action is
discretionary is an initial step in determining whether Section 7 consultation is required.
Additionally, Section 7 consultation requirements may be superseded in certain circumstances by
other statutory provisions. (See “Can the Consultation Process Be Waived for Particular
Infrastructure Projects?”) Other situations, such as emergencies, may not exempt or waive federal
action agencies’ Section 7 obligations but may affect the consultation process. (See “How Could
an Emergency Affect the Consultation Process for Infrastructure Projects?”) Even if consultation
is not legally required, an action agency may choose to undertake consultation voluntarily.12

Mandatory Agency Actions and Section 7 Consultation:
National Association of Home Builders v. Defenders of Wildlife
The Supreme Court has considered whether Section 7 ESA requirements apply to federal agency actions that are
mandated by statute. Specifically, in National Association of Home Builders v. Defenders of Wildlife (NAHB), the Court
addressed how the ESA consultation requirement interacts with a Clean Water Act (CWA) requirement that the
U.S. Environmental Protection Agency (EPA) transfer certain permitting authorities to states. The CWA requires
the transfer when states request permitting authority and meet nine statutory criteria.
In NAHB, Arizona had applied to administer a CWA permitting program in the state. EPA initiated consultation
pursuant to Section 7 with FWS. Although the two agencies had to resolve whether the consultation could include
consideration of the state’s possible future permitting actions, FWS ultimately issued a no jeopardy biological
opinion, concluding that any effect on listed species from permits issued by the state was part of the statutory
scheme created by Congress under the CWA. EPA determined that Arizona had met the nine statutory criteria
and transferred permitting authority.
Defenders of Wildlife challenged the transfer, alleging that EPA had failed to comply with its ESA obligations under
Section 7. Among other arguments, Defenders contended that the BiOp was inadequate because it failed to
consider the effects of losing Section 7 review over future permitting decisions made by the Arizona state
authorities. Defenders argued that EPA violated ESA by relying on the deficient BiOp. The U.S. Court of Appeals
for the Ninth Circuit agreed, holding that Section 7 applied to the transfer and required EPA to consider the effect
of approving the transfer on listed species and critical habitat, effectively creating a tenth requirement for
transferring permitting authority to states.
The Supreme Court reversed. In the Court’s view, the Ninth Circuit’s interpretation would result in the ESA
implicitly amending (i.e., repealing and replacing with a requirement added) not only the CWA but numerous
other statutory provisions. The Court noted that later-enacted legislation (e.g., the ESA in this case) is not

8 For additional background on federally funded highways, see CRS Report R46323, Reauthorization of Federal
Highway Programs, by Robert S. Kirk and CRS Report R45350, Funding and Financing Highways and Public
Transportation, by Robert S. Kirk and William J. Mallett.
9 50 C.F.R. §402.03.
10 See, for example, National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 670-73 (2007). See
text box for more information on this case.
11 See, for example, American Rivers v. U.S. Army Corps of Engineers, 271 F. Supp. 2d 230, 251-53 (D.D.C. 2003).
12 See National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007).
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presumed to repeal earlier statutory provisions implicitly (e.g., the CWA in this case) unless that intent is clear.
Interpreting Section 7’s scope, the Court observed that the Services had already addressed this tension in 1986 by
adopting regulations interpreting Section 7 to apply only to discretionary federal actions. Concluding that this
interpretation was reasonable given the ESA’s “text and the overall statutory scheme,” the Court held that
Section 7 applies only to discretionary agency actions and not ones an agency is “required to undertake once
certain specified triggering events have occurred.”
Accordingly, agency actions are not subject to Section 7 when they are taken pursuant to statutory provisions that
do not afford the agency discretion to consider the effect on listed species or critical habitat (i.e., mandatory
actions). However, statutory mandates that give the agency discretion over implementing an action may be subject
to Section 7.
Sources: National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007); 16 U.S.C.
§1536(a)(2); 33 U.S.C. §1342(b); 50 C.F.R. §402.03; 51 Federal Register 19926 (June 3, 1986).
Who Is Responsible for Compliance with Section 7 of the ESA?
Section 7 of the ESA requires the Services, action agencies, and certain nonfederal entities to
undertake certain activities to ensure that no listed species are jeopardized or critical habitat is
adversely modified by an agency action.
As noted above, infrastructure projects (and other actions) subject to Section 7 include projects
action agencies undertake and projects nonfederal entities undertake with federal authorization or
funding. In the case of a direct action by a federal agency, the action agency is responsible for
undertaking activities to comply with Section 7. In the case of an action undertaken by a
nonfederal entity with federal authorization or funding, the authorizing or funding action agency
may delegate responsibility for certain activities for complying with Section 7 to the nonfederal
entity, which is known as the designated nonfederal representative.13
Under the ESA regulations, a designated nonfederal representative may undertake several of the
initial activities related to compliance with Section 7 (see “How Does the Consultation Process
Work?”) in lieu of or in connection with the action agency. For example, the designated
nonfederal representative can determine whether listed species or critical habitat are present in the
action area, evaluate any impacts of the action on listed species or critical habitat, and initiate
informal consultation with the Services. In some cases, the designated nonfederal representative
may demonstrate to the action agency that consultation is not required for Section 7 compliance.
Although a designated nonfederal representative may be allowed to undertake certain activities,
the implementing regulations for Section 7 state that “the ultimate responsibility for compliance
with section 7 remains with the Federal agency.”14 Only the action agency may initiate formal
consultation with the Services. However, the designated nonfederal representative may participate
in the formal consultation process—for example, by providing information to the Services or
assisting in developing alternatives to mitigate the effects on listed species or critical habitat. In
practice, designated nonfederal representatives often may assume such duties when seeking
federal approvals or funding.
The Services are responsible for administering the ESA, including consulting with action
agencies under Section 7. FWS is responsible for consulting on terrestrial and freshwater listed
species and their critical habitat, and NMFS is responsible for marine and anadromous listed
species and their critical habitat.

13 50 C.F.R. §402.08.
14 50 C.F.R. §402.08.
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How Does the Consultation Process Work?
Consultation is a multistep process for determining whether, and if so, how, an action may affect
listed species or critical habitat (see Figure 1).15 For a proposed action, the federal agencies, and
nonfederal entities as applicable, must first determine whether listed species or critical habitat
may be present in the action area.16 The ESA requires action agencies to request information from
the Services as to whether listed or proposed species or critical habitat may be present.17 Under
the ESA implementing regulations, an action agency may either request a list of listed or
proposed species and designated or proposed critical habitat from the Service or prepare a list
itself and request the Service’s concurrence.18 If the action agency or nonfederal entity determines
that listed species or critical habitat are not present in the action area, consultation with the
Services generally is not required.
For those actions—including infrastructure projects or components thereof—that occur in an
action area in which listed species or critical habitat is or may be present, action agencies or
designated nonfederal representatives generally must determine whether the proposed action may
affect the listed species or critical habitat that is present. The process of evaluating possible
effects of the action is generically referred to as a biological evaluation.19 If the project
constitutes a major construction activity, the action agency or designated nonfederal
representative must conduct a statutorily specified type of evaluation known as a biological
assessment (BA), which assesses the anticipated impact of the action on the species and critical
habitat.20 The BA must be completed “before any contract for construction is entered into and
before construction is begun with respect to such action.”21

15 Although compliance with Section 7 is statutorily mandated under the ESA, action agencies may choose to
incorporate and document compliance as part of the National Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et
seq.) process, which “requires federal agencies to identify and evaluate impacts of ‘major Federal actions significantly
affecting the quality of the human environment.’” See CRS In Focus IF11549, The Legal Framework of the National
Environmental Policy Act, by Nina M. Hart and Linda Tsang.
16 16 U.S.C. §1536(c)(1). Per 50 C.F.R. §402.02, “action area means all areas to be affected directly or indirectly by
the Federal action and not merely the immediate area involved in the action.”
17 16 U.S.C. §1536(c)(1).
18 50 C.F.R. §402.12(c)–(d). To request a list, the action agency, or the designated nonfederal entity for the action, may
contact the local Service office directly or, for species administered by FWS, request an official species list through
FWS’s Information for Planning and Consultation (IPaC) online mapping system. FWS, Consultations: Frequently
Asked Questions, https://www.fws.gov/endangered/what-we-do/faq.html; FWS, Information for Planning and
Consultation, https://ecos.fws.gov/ipac/. NMFS offers several online mapping systems as well for specific regions. See
NMFS, The Greater Atlantic Region ESA Section 7 Mapper, https://www.fisheries.noaa.gov/resource/map/greater-
atlantic-region-esa-section-7-mapper; NMFS, Alaska Protected Resources Division, Species Distribution Mapper,
https://alaskafisheries.noaa.gov/portal/apps/webappviewer/index.html?id=446543503a2e4660b0f5ee55e6407d27;
NMFS, West Coast Region, Protected Resources App,
https://www.webapps.nwfsc.noaa.gov/portal/apps/webappviewer/index.html?id=7514c715b8594944a6e468dd25aaacc9
; NMFS, Resources: Science & Data, https://www.fisheries.noaa.gov/resources/maps. Action agencies may also use
IPaC or NMFS’s various online mapping systems for different regions to prepare their own lists.
19 FWS, Consultations: Frequently Asked Questions, https://www.fws.gov/endangered/what-we-do/faq.html. Agency
guidance may identify predetermined no effect activities that preempt the need for further evaluation.
20 16 U.S.C. §1536(c)(1); 50 C.F.R. §402.12. The statutory provision states that biological assessments (BAs) are
required if listed species may be present. 16 U.S.C. §1536(c)(1). The Services have interpreted this requirement to
apply only to major construction activities, and to be triggered when critical habitat may be present as well—not just
listed species. 50 C.F.R. §402.12. The Services’ regulations define “major construction activities” to mean projects
with physical impacts that are major federal actions “significantly affecting the quality of the human environment” as
the term is used in NEPA. 50 C.F.R. §402.02.
21 16 U.S.C. §1536(c)(1).
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The contents of a BA are left to the discretion of the action agency and depend on the nature of
the action.22 A BA may include
 a description of the proposed action;
 information from on-site inspections for listed species;
 expert opinions;
 reviews of scientific literature;
 analyses of the effects of the action on species and critical habitat, including
cumulative effects and any studies conducted to assess the effects; and
 analyses of the effects of any alternative actions the action agency considered.23
An action agency may conduct a BA if the project is not a major construction activity.24
Through the biological evaluation, whether a BA or otherwise, the action agency or nonfederal
entity may find that the action either has no effect on listed species or critical habitat or may affect
listed species or critical habitat. If the evaluation supports that there will be no effect, further
consultation is generally not required.25 Alternatively, if the action agency or designated
nonfederal representative determines that a project may affect listed species or critical habitat,
action agencies generally must initiate informal or formal consultation with the Services.

22 50 C.F.R. §402.12(f). Courts have observed that “there are no strict requirements for what the biological assessment
should include.” Bays’ Legal Fund v. Browner, 828 F. Supp. 102, 110 n.19 (D. Mass. 1993). BAs generally do not
constitute final agency action under the Administrative Procedure Act to subject them to judicial review. Alliance for
the Wild Rockies v. U.S. Forest Service, 504 F. Supp. 3d 1162, 1189 (E.D. Wash. 2020). However, a court may review
a BA when a final agency action such as a letter of concurrence of no effect from one of the Services relies on the BA
to reach its conclusion. See, for example, Alliance for the Wild Rockies v. U.S. Forest Service, 504 F. Supp. 3d 1162,
1189 (E.D. Wash. 2020); Oregon Wild v. U.S. Forest Service, 193 F. Supp. 3d 1156, 1164 (D. Ore. 2016).
23 50 C.F.R. §402.12(f).
24 The ESA implementing regulations state that the procedures outlined for BAs are required for major construction
activities and that any person may prepare a BA consistent with those procedures. 50 C.F.R. §402.12(b). The Services’
ESA Section 7 Consultation Handbook states that a BA is not required for actions that are not major construction
activities, but that the action agency “must provide the Services with an account of the basis for evaluating the likely
effects of the action” if listed species or critical habitat is likely to be affected by the action. FWS and NMFS,
“Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities
Under Section 7 of the Endangered Species Act,” March 1998, pp. 3-11, at https://www.fws.gov/endangered/esa-
library/pdf/esa_section7_handbook.pdf. However, courts have disagreed whether the plain language of the ESA
requires action agencies to prepare BAs for all agency actions—including actions that are not major construction
activities—if listed species or critical habitat may be present. For example, district courts for the District of Idaho,
District of Montana, and District of Hawaii have concluded that all agency actions that may affect listed species or
critical habitat require a BA—regardless of whether the action is a major construction activity. Friends of the
Clearwater v. Higgins, 472 F. Supp. 3d 859, 871 (D. Idaho 2020); Native Ecosystems Council v. Marten, 2020 WL
1479059, at *4 (D. Mont. Mar. 26, 2020); Center for Food Safety v. Johanns, 2006 WL 2927121, at *1 (D. Haw. Oct.
11, 2006). The U.S. Court of Appeals for the Eighth Circuit and a district court for the District of Nevada have
concluded that BAs are only required for major construction activities. Newton County Wildlife Association v. Rogers,
141 F.3d 803, 810-11 (8th Cir. 1998); Western Watersheds Project v. Bureau of Land Management, 552 F. Supp. 2d
1113, 1139-40 (D. Nev. 2008).
25 In some cases, action agencies have prepared Section 7 consultation guidance documents that include a list of actions
determined in advance to have “no effect” on listed species. For example, Federal Highway Administration (FHWA)
New York Division, Endangered Species Act, Section 7, Essential Fish Habitat, and Marine Mammal Protection Act:
Process for Compliance and Consultation, June 2020, p. 55,
https://www.dot.ny.gov/divisions/engineering/environmental-analysis/manuals-and-
guidance/epm/repository/4.4.9.3_AppG_FHWA_ESA_Section_7.pdf; HUD, Endangered Species Act: No Effect
Guidance for Idaho, p. 3, https://www.hud.gov/sites/documents/IDNOEFFECT.pdf.
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Informal consultation is an optional process that can help action agencies determine whether
formal consultation is required. During informal consultation, the action agency or designated
nonfederal representative may correspond and meet with one or both of the Services about a
proposed action.26 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 or designated nonfederal representative could modify the proposed action to avoid any
anticipated adverse effects on listed species or critical habitat.27 Informal consultations have
significantly outnumbered formal consultations under the ESA. In a 2015 study that analyzed
Section 7 consultations from 2008 to 2015, 81,461 informal consultations were completed,
compared with 6,829 formal consultations.28 This study also reported that informal consultations
took an average of 13 days and formal consultations took an average of 62 days.29
If the action agency concludes from the biological evaluation or during informal consultation that
the action is not likely to adversely affect listed species or critical habitat, and the Service concurs
in writing, the consultation process ends.30 If the action agency concludes that the action is likely
to adversely affect listed species or critical habitat, or if the Service does not concur with the
action agency’s assessment that the action will not adversely affect listed species or critical
habitat, the action agency generally must initiate formal consultation.31 Once the action agency
initiates formal consultation, neither the action agency nor any nonfederal entity may irretrievably
or irreversibly commit any resources that would have “the effect of foreclosing the formulation or
implementation of any reasonable and prudent alternative measures.”32
Although either an action agency or nonfederal entity may initiate and participate in an informal
consultation, only action agencies may initiate formal consultations. However, under the ESA
regulations, a nonfederal entity may request that an action agency enter into early consultation
before the entity applies for a federal permit or license if the nonfederal entity believes the action
may affect listed species or critical habitat.33 This process generally requires submission of the
same information as a formal consultation and follows the same procedures.34
To initiate formal consultation, the action agency submits a written request to one or both of the
Services, as appropriate, that describes the proposed action and the anticipated effects of the
action on listed species (including a BA, if applicable), along with any other relevant
information.35 The Services review the information and discuss the analysis and any potential
reasonable and prudent alternatives (RPAs) with the action agency (and nonfederal entity, if
applicable).36 RPAs “refer to alternative actions identified during formal consultation that can be
implemented in a manner consistent with the intended purpose of the action, that can be

26 50 C.F.R. §402.13.
27 50 C.F.R. §402.13(b).
28 J. W. Malcom and Ya-Wei Li, “Data Contradict Common Perceptions About a Controversial Provision of the U.S.
Endangered Species Act,” Proceedings of the National Academy of Sciences, vol. 112, no. 52 (December 29, 2015).
Hereinafter cited as Malcom and Li, “Data Contradict Common Perceptions.”
29 Malcom and Li, “Data Contradict Common Perceptions.”
30 50 C.F.R. §402.13(c).
31 50 C.F.R. §402.14.
32 16 U.S.C. §1536(d).
33 50 C.F.R. §402.11. In early consultation, the nonfederal entity is referred to as the prospective applicant.
34 50 C.F.R. §402.11.
35 50 C.F.R. §402.14(c).
36 50 C.F.R. §§402.12(k), 402.14.
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implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
that is economically and technologically feasible.”37
At the end of a formal consultation, the Service issues a biological opinion (BiOp).38 A BiOp is a
detailed statement of the Service’s opinion as to whether the proposed action is likely to
jeopardize listed species or adversely modify critical habitat. BiOps contain scientific information
and analysis of the likely effects of the action on listed species and critical habitat.39 The analyses
and results in the BiOp must be based on the “best scientific and commercial data available.”40
The BiOp may find that the proposed action is not likely to jeopardize listed species or adversely
modify critical habitat, known as a no jeopardy opinion, or that it may jeopardize listed species or
adversely modify critical habitat, known as a jeopardy opinion. In the case of a jeopardy opinion,
the ESA directs the Services to suggest any RPAs to the action that could alter the implementation
of the action to avoid jeopardizing listed species or adversely modifying critical habitat.41 If the
Services issue a jeopardy BiOp with an RPA, the action agency and any related nonfederal entity
may decide whether to proceed with a proposed RPA in lieu of the original action, to proceed
with the original action at risk of violating the ESA, or not to proceed with the action.
If the Service concludes that the proposed action, either as proposed or with an RPA, may affect
listed species or critical habitat but would not jeopardize listed species or adversely modify
critical habitat, the Service includes an incidental take statement (ITS) in the BiOp.42 The ITS
states the anticipated impact of incidental take on the species from the action or, as applicable, an
RPA and provides reasonable and prudent measures (RPMs) the Service considers to be
appropriate and necessary to minimize that impact.43 The ITS includes terms and conditions that
require the agency and any involved nonfederal entity to implement the RPMs.44 The action
agency and any related nonfederal entity may take listed species pursuant to the ITS in
compliance with these terms and conditions without violating the ESA’s prohibitions on take.45
Most consultations result in “no jeopardy” opinions, and nearly all of the rest identify RPAs for
the project that allow the agency to move forward.46

37 50 C.F.R. §402.02.
38 16 U.S.C. §1536(b); 50 C.F.R. §402.14(h).
39 16 U.S.C. §1536(b)(3); 50 C.F.R. §402.14(h).
40 16 U.S.C. §1536(a)(2); 50 C.F.R. §402.14(d), (g)(8).
41 16 U.S.C. §1536(b)(3)(A).
42 16 U.S.C. §1536(b)(4). If take is anticipated with the implementation of an RPA, an incidental take statement (ITS)
must also be developed to exempt take from prohibitions under the ESA. The ESA defines take to mean “harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct,” and incidental
take is take that is incidental to and not the purpose of an otherwise lawful action. 16 U.S.C. §1532(19).
43 16 U.S.C. §1536(b)(4).
44 16 U.S.C. §1536(b)(4)(iv).
45 16 U.S.C. §1536(o).
46 Malcom and Li, “Data Contradict Common Perceptions.”
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Adaptive Management in Biological Opinions
Section 7 consultations for infrastructure projects and activities sometimes result in BiOps with provisions that
allow action agencies or nonfederal entities to manage their activities adaptively to address RPMs within a BiOp.
The Department of the Interior has described adaptive management as a decision process that “promotes flexible
decision making that can be adjusted in the face of uncertainties as outcomes from management actions and other
events become better understood.” An adaptive management measure, for example, might allow an agency to
monitor the effectiveness of its precautions and make changes if appropriate or necessary as it implements the
action. This type of provision provides agencies with flexibility to modify their operations under variable or
uncertain circumstances to maximize their objectives, while not violating Section 7.
For example, a BiOp for operations and maintenances of dams in stretches of the Columbia River included an
adaptive management program. The action agencies in this BiOp use an adaptive management process to manage
operations and guide the implementation of habitat and ecosystem measures to benefit the populations of listed
salmon and steelhead, coordinating with NMFS and other partners when implementing adaptations to the
operations or mitigation strategies. Adaptive management techniques may also be used to account for changes in
environmental conditions that the Services did not contemplate when formulating the BiOp. In these cases, the
action agencies may seek concurrence from either FWS or NMFS to implement temporary modifications of the
implementation of the BiOp.
Adaptive management may also lower the likelihood of needing to reinitiate consultation. Under certain
circumstances, action agencies may be required to reinitiate a Section 7 consultation to obtain a new or amended
BiOp for certain types of actions. The Services interpret an action to continue, and as such may require reinitiating
consultation, so long as “discretionary Federal involvement or control over the action has been retained or is
authorized by law.” Such continuing actions are also known as ongoing actions. An ongoing action may take place
over shorter time periods (e.g., the actual construction phase of an infrastructure project) or longer time periods
(e.g., an action agency could be responsible for operations and maintenance of an existing project). An action
agency must generally reinitiate consultation on an ongoing action if one of four circumstances occurs:

the action exceeds the incidental take specified in the ITS;

new information reveals effects on listed species or critical habitat that were not previously considered;

the action is modified in a manner that affects listed species or critical habitat in a way that the BiOp did not
consider; or

a new species is listed or critical habitat is designated that may be affected by the action.
Adaptive management may make it less likely that the action exceeds the incidental take specified in the ITS or
that the action needs to be modified in an unanticipated manner. However, adaptive management does not
preclude reinitiation if one or more of the four conditions do arise.
Sources: Dennis D. Murphy and Paul S. Weiland, “Guidance on the Use of the Best Available Science under the
Endangered Species Act,” Environmental Management, vol. 58 (2016), pp. 1-14; Byron K. Wil iams et al., Adaptive
Management: The U.S. Department of the Interior Technical Guide, Department of the Interior, 2009, p. v,
https://www.doi.gov/sites/doi.gov/files/uploads/TechGuide-WebOptimized-2.pdf; 50 C.F.R. §402.16; NMFS, ESA
Section 7(a)(2) Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat
Response, Portland, OR, July 24, 2020.

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Figure 1. ESA Section 7 Informal and Formal Consultation Process

Source: CRS, adapted from FWS and NMFS, “Endangered Species Consultation Handbook: Procedures for
Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act,” March
1998, pp. 3-3 and 4-3, at https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf.
Notes: The informal consultation process is depicted in the top section (gray background); the formal
consultation process is depicted in the bottom section (white background). During the informal consultation
process, either the action agency or the nonfederal entity undertaking the action that requires federal
authorization or funding may prepare the species/critical habitat list, enter into optional discussions with the
Service, or prepare the biological assessment.
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Streamlining, Expediting, and Waiving ESA
Section 7 Requirements
How Can the Consultation Process Be Streamlined for
Infrastructure Projects?
In some circumstances, action agencies and the Services can work together to streamline
compliance with Section 7 for some types of agency actions, including infrastructure projects. For
example, for many infrastructure projects, the action agencies may meet their Section 7
obligations by determining that no listed species or critical habitat are present or that the action
will not affect listed species or critical habitat as noted above.47 In some cases, agencies’ guidance
on Section 7 compliance include a list of predetermined “no effect” actions that are not expected
to affect listed species or critical habitat and accordingly do not require further Section 7
consultation.48
Another potential option for streamlining Section 7 consultation is the use of programmatic
consultations. Programmatic consultations allow federal agencies to consult with the Services on
multiple, frequently occurring, or routine actions in a particular geographic area or on proposed
programs, policies, or regulations that would provide a framework for future actions.49 Individual
projects conducted under a program covered by a programmatic consultation generally require a
separate consultation under Section 7, but this separate consultation would generally be limited to
the distinct effects of the individual project. Several programs that oversee the construction and
operation of infrastructure comply, at least in part, with Section 7 under programmatic
consultations.
For example, FHWA, Federal Railroad Administration, Federal Transit Authority, and FWS
completed a range-wide programmatic consultation that concluded with the publication of a BiOp
for the endangered Indiana bat, Myotis sodalis, and the threatened northern long-eared bat, M.
septentrionalis, in 2016 (later revised in 2018).50 The aim of the programmatic consultation was

47 For example, FHWA and the Department of Housing and Urban Development have prepared guidance on when
actions may not require further consultation. FHWA New York Division, Endangered Species Act, Section 7, Essential
Fish Habitat, and Marine Mammal Protection Act: Process for Compliance and Consultation, June 2020,
https://www.dot.ny.gov/divisions/engineering/environmental-analysis/manuals-and-
guidance/epm/repository/4.4.9.3_AppG_FHWA_ESA_Section_7.pdf; HUD, Endangered Species Act: No Effect
Guidance for Idaho, https://www.hud.gov/sites/documents/IDNOEFFECT.pdf.
48 For example, FHWA New York Division, Endangered Species Act, Section 7, Essential Fish Habitat, and Marine
Mammal Protection Act: Process for Compliance and Consultation, June 2020, p. 55,
https://www.dot.ny.gov/divisions/engineering/environmental-analysis/manuals-and-
guidance/epm/repository/4.4.9.3_AppG_FHWA_ESA_Section_7.pdf; HUD, Endangered Species Act: No Effect
Guidance for Idaho, p. 3, https://www.hud.gov/sites/documents/IDNOEFFECT.pdf.
49 50 C.F.R. §402.13(l). See also, FWS and NMFS, “Endangered Species Consultation Handbook: Procedures for
Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act,” March 1998,
Chapter 5, at https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf. Hereinafter Section 7
Handbook.
50 The range of the Indiana bat and the Northern long-eared bat covers 22 and 37 states, respectively, and therefore has
the potential to require Section 7 consultation for numerous transportation projects. FWS, Midwest Regional Office,
Programmatic Biological Opinion for Transportation Projects in the Range of the Indiana Bat and Northern Long-
Eared Bat , FWS, Programmatic Biological Opinion, February 2018, pp. 1-157,
https://www.fws.gov/midwest/endangered/section7/fhwa/pdf/BORevised02052018forIbatNLEB_FHWA_FRA_%20F
TA.pdf. Hereinafter FWS, Programmatic Biological Opinion.
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to streamline the environmental review process, improve conservation of bats, standardize the
assessment of effects on the bats across their range, and reduce the workload for project
applicants, action agencies, and the Services.51 As a result of the programmatic consultation, a
range-wide conservation strategy for the bats was developed and a Programmatic Consultation
Working Group was formed to oversee implementation and recommend changes.52 Information
provided by this consultation and conservation strategy allowed action agencies to avoid projects
with high impacts or modify projects to minimize impacts on species. The BiOp also contained a
compensatory mitigation strategy that identifies priority conservation areas to offset and
minimize the effects on listed species caused by large-scale projects or activities.53 According to
the FHWA, as of 2018, the programmatic consultation reduced the time frames for related formal
consultations from approximately 135 days to 30 days.54
How Could an Emergency Affect the Consultation Process for
Infrastructure Projects?
The consultation process can be expedited for infrastructure projects during certain emergency
situations.55 Certain infrastructure activities may be undertaken during, or precipitated by, an
emergency, such as replacing a road washed out by a hurricane. Under certain emergency
circumstances, action agencies must undertake activities to respond to the emergency,56 and
federal agencies “may not have the time for the administrative work required by the consultation
regulations under non-emergency conditions.”57 Situations involving emergencies may affect the
Section 7 consultation requirements by altering whether or how federal action agencies are
required to consult with the Services. In these emergency situations, the Services’ regulations
allow action agencies to follow an alternate consultation procedure.58 For example, an action
agency may initially contact and engage in informal consultation before the agency action but
complete formal consultation, if needed, only after the emergency conditions have subsided
(Figure 2).

51 FWS, Programmatic Biological Opinion, p. 1 and FHWA, Updates to the Indiana Bat and Northern Long-Eared Bat
Programmatic Consultation Accelerate Project Delivery and Improve Mitigation Outcomes, 2018, Environmental
Review Toolkit, https://www.environment.fhwa.dot.gov/pubs_resources_tools/publications/newsletters/mar18nl.aspx.
Hereafter, FHWA, Updates to the Indiana Bat and Northern Long-Eared Bat.
52 FWS, Programmatic Biological Opinion.
53 FWS, Programmatic Biological Opinion.
54 FHWA, Updates to the Indiana Bat and Northern Long-Eared Bat.
55 Per regulation, emergencies may include “acts of God, disasters, casualties, national defense or security
emergencies.” 50 C.F.R. §402.05(a).
56 50 C.F.R. §402.05.
57 Section 7 Handbook.
58 50 C.F.R. §402.05(a).
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Figure 2. ESA Section 7 Emergency Consultation Process

Source: FWS and NMFS, “Endangered Species Consultation Handbook: Procedures for Conducting
Consultation and Conference Activities Under Section 7 of the Endangered Species Act,” March 1998, p. 8-3, at
https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf; reformatted by CRS.
Note: Field and regional offices referenced in this figure refer to those of either FWS or NMFS, as applicable.
Even if required formal consultation is not conducted until after the action agency has responded
to an emergency, the Services still complete a BiOp to document any effects of the action on
listed species and critical habitat and to advise on future conservation recommendations.59 The
BiOp describes the emergency, the recommendations given to the action agency through informal
consultation during the emergency, and the effect on listed species and/or critical habitat.60 The
BiOp also includes an ITS authorizing any take that may have occurred due to the emergency
action.61 Because the formal consultation occurs after the agency action, the ITS does not include
reasonable and prudent measures or terms and conditions unless elements of the agency’s
emergency action will continue after the BiOp is issued.62
Can the Consultation Process Be Waived for Particular
Infrastructure Projects?
The ESA and other statutory provisions allow the Section 7 consultation requirement to be
waived in certain circumstances. For example, subsection 7(p) of the ESA provides that in a

59 Section 7 Handbook, chapter 8.
60 50 C.F.R. §402.05; FWS and NMFS, Endangered Species Conservation Handbook: Procedures for Conducting
Consultation and Conference Activities Under Section 7 of the Endangered Species Act, March 1998, at
https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf, p. 8-4.
61 Section 7 Handbook, p. 8-5.
62 Section 7 Handbook, pp. 8-4–8-5.
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presidentially declared major disaster area,63 the President may exempt federal agency actions
related to the “repair or replacement of a public facility substantially as it existed prior to the
disaster” from the consultation requirements under Section 7 if other conditions are met.64 An
exemption from the consultation requirements granted pursuant to the subsection also constitutes
an exemption from the prohibition against takings under Section 4(d) and Section 9 of the act.65
Congress has specified that the Section 7(p) exemption authority applies in specific situations.
For example, the exemption authority under Subsection 7(p)—along with the alternative
emergency consultation authority described above—was cited in legislation relating to
reconstructing “any road, highway, railway, bridge, or transit facility that is damaged by an
emergency that is…declared as an emergency by the President pursuant to the Robert T. Stafford
Disaster Relief and Emergency Assistance Act.”66
Congress also has elected to alter Section 7 consultation requirements for certain activities in
other situations, which may include actions related to infrastructure. In some instances, Congress
has waived consultation requirements directly for specific projects or specific areas of public
land.67 In other instances, Congress has delegated the authority to waive consultation
requirements to certain federal agencies. For example, Section 102 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, as amended, allows the Secretary of
Homeland Security to “take such actions as may be necessary to install additional physical
barriers and roads…in the vicinity of the United States border to deter illegal crossings in areas of
high illegal entry into the United States.”68 Subsection 102(c) further provided that “the Secretary
of Homeland Security shall have the authority to waive all legal requirements such Secretary, in
such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the
barriers and roads under this section.”69 The Secretary of Homeland Security has on multiple
occasions used this authority to waive ESA requirements, among other legal requirements, for
activities related to projects along the U.S.-Mexico border.70 For example, the Secretary of
Homeland Security waived the ESA for activities within specified project areas in Texas for “the
construction of roads (including, but not limited to, accessing the project areas, creating and using
staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and
upkeep of the roads, drainage, erosion controls, and safety features)” in August 2020.71

63 This refers to disaster declarations pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act,
also known as the Stafford Act (42 U.S.C. §§5121 et seq.).
64 16 U.S.C. §1536(p). Specifically, the project must also be needed to prevent another such disaster from occurring
and reduce the potential loss of human life, and the President must determine that an emergency exists that does not
allow the federal agency to follow the standard procedures. 16 U.S.C. §1536(p).
65 16 U.S.C. §1536(o). Sections 4(d) and 9 are 16 U.S.C. §1533(d) and 16 U.S.C. §1538, respectively.
66 Fixing America’s Surface Transportation (FAST) Act, P.L. 114-94, §1432(a).
67 See, for example, 43 U.S.C. §2606; P.L. 96-69, Title IV in section related to the Tennessee Valley Authority (93
Stat. 449-450).
68 8 U.S.C. §1103 note; P.L. 104-208, div. C, title I, §102(a)–(c), as amended by P.L. 109-13, div. B, title I, §102, P.L.
109-367, §3, and P.L. 110-161, div. E, title V, §564(a).
69 P.L. 104-208, div. C, title I, §102(c), as amended.
70 P.L. 104-208, div. C, title I, §102(c), as amended requires the Secretary of Homeland Security to publish use of the
waiver authority in the Federal Register. For more information on this authority, see CRS Report R43975, Barriers
Along the U.S. Borders: Key Authorities and Requirements, by Michael John Garcia.
71 Department of Homeland Security, “Determination Pursuant to Section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, as Amended,” 85 Federal Register 43593, July 17, 2020.
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What If an Infrastructure Project May Jeopardize Listed Species or
Adversely Affect Critical Habitat and There Are No Viable
Reasonable and Prudent Alternatives?
If the action may jeopardize listed species or adversely modify critical habitat, the action agency
may apply to the Endangered Species Committee (also referred to as the “God squad”) for an
exemption from the ESA requirements.72 To receive an exemption, the action agency must have
carried out its consultation responsibilities in good faith, made a reasonable effort to develop and
consider modifications or RPAs, conducted a BA if required, and refrained from making any
prohibited irreversible or irretrievable commitments of resources.73 To grant the exemption, the
Committee must determine that there are no RPAs, that the benefits of proceeding with the action
outweigh the benefits of alternative courses of action consistent with conserving species and their
habitat, that the action is in the public interest and of national or regional significance, and that
there was no prohibited irretrievable or irreversible commitment of resources before the
exemption.74 There have been three completed applications for an exemption under this process
(two granted) and three other instances in which applications were filed but the applications were
withdrawn or abandoned.75

Author Information

Erin H. Ward
Pervaze A. Sheikh
Legislative Attorney
Specialist in Natural Resources Policy

R. Eliot Crafton

Analyst in Natural Resources Policy

72 16 U.S.C. §1536(e)-(h). For more information about ESA exemptions, see CRS Report R40787, Endangered Species
Act (ESA): The Exemption Process, by Pervaze A. Sheikh.
73 16 U.S.C. §1536(g)(3).
74 16 U.S.C. §1536(h)(1)(A).
75 For more information on the exemption process, see CRS Report R40787, Endangered Species Act (ESA): The
Exemption Process, by Pervaze A. Sheikh.
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Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

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