The Endangered Species Act (ESA), administered by the U.S. Fish and Wildlife Service (FWS), provides broad protection for species of insects, birds, fish, mammals, reptiles, crustaceans, grasses, flowers and trees that are listed as threatened or endangered in the United States or elsewhere. Provisions are made for listing species, as well as for recovery plans and the designation of critical habitat for listed species. The Act outlines procedures for federal agencies to follow when taking actions that may jeopardize species, and contains exceptions and exemptions. The FWS maintains the list of endangered species and threatened species. The law prohibits any action, administrative or real, that results in a "taking" of a listed species, or adversely affects habitat.

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ESA Section 7 directs all Federal agencies to use their existing authorities to conserve threatened and endangered species and, in consultation with the Service, to ensure that their actions do not jeopardize listed species or destroy or adversely modify critical habitat. Section 7 applies to management of Federal lands as well as other Federal actions that may affect listed species, such as Federal approval of private activities through the issuance of Federal permits, licenses, or other actions. For more information, please see the Consultations With Federal Agencies fact sheet. [PDF 190kb]

According to the FHWA Guidance Memo on Management of the Endangered Species Act Consultation Process [DOC 41kb], the National Environmental Policy Act (NEPA) and the ESA Section 7 processes interact in the early phases of the environmental analysis of a transportation project. NEPA drives the evaluation of biological resources in the project area concurrent and interdependent with the ESA Section 7 consultation process.

Evaluation of impacts to species federally-listed as endangered is required for all levels of NEPA documentation, and the detail of analysis is potentially the same, dependant on the scope of the project, ecological importance and distribution of the affected species, and intensity of potential impacts of the project. A Categorical Exclusion determination through NEPA does not exempt any project from sufficient environmental analysis to determine the likely presence and potential impacts of the project on listed species, unless a programmatic determination to that effect has been made at the local level with the concurrence of the Fish and Wildlife Service/National Marine Fisheries Service (Services). A potential impact on species or habitat protected by the ESA does not automatically require elevation of the NEPA documentation (CE, EA, EIS). This depends on the importance of the resources and the scope of the impacts, the guidance said. For more information, please link to the guidance, above.

FWS and the Federal Highway Administration also have provided joint guidance to streamline compliance with Endangered Species Act requirements for transportation projects under the Transportation Equity Act for the 21st Century. See Department of Transportation Programmatic Consultation Guidance.

In addition, a joint agency agreement between FHWA and FWS, issued in February 2005, focuses specifically on the timing and information requirements under ESA Section 7(a)(2). For more information, link to Joint Agency Agreement on ESA’s Formal Consultation Process.

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ESA Section 6 provides that the Secretary of the Interior must cooperate to "the maximum extent practicable" with the states, including consulting with a state before acquiring land, water or interests for conservation of listed species. The Secretary can enter into agreements with states for administration and management of areas established for conservation of listed species. Cooperative agreements may also be entered into with those states that establish and maintain adequate and active programs for conservation of listed species. Provision is made for public participation in the listing process. Cooperative agreements also may be entered into for conservation of listed resident plant species.

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According to FHWA, many states and federal review and permitting agencies have increasingly recognized that watershed and ecosystem approaches to enhancement, restoration, and preservation of aquatic and upland ecosystems can expedite the environmental review process for transportation projects, while maximizing benefit to the environment.

FHWA has identified increasing ecosystem and habitat conservation as one of its “Vital Few Goals.”  FHWA has undertaken an initiative to identify “exemplary ecosystem” projects across the country. For more information, see FHWA’s Exemplary Ecosystems Initiatives Web site.

FHWA said it plans to identify additional exemplary ecosystem and habitat projects that are unique or highly unusual in their (a) geographic scope; (b) use of cutting edge science or technology; (c) high level of environmental standards; (d) high quality of results achieved; and/or (e) recognition by environmental interests as being particularly valuable or noteworthy.

Exemplary ecosystem and habitat projects can come in many different forms such as development of conservation agreements, establishment or use of wetland banking, special mitigation based on research to assess wildlife movement corridors and habitat connectivity, partnering with local, State, and national conservation organizations to advance common goals, and development of ecological and environmental Geographic Information System baseline databases for use in project development and mitigation, the agency said.

Eco-Logical Approach

In 2005, a team of federal agencies endorsed a new ecosystem approach to infrastructure development. Dubbed Eco-Logical, the approach encourages agency partners involved in infrastructure planning, design, review, and construction to use flexibility in regulatory processes.

According to the agencies, “Eco-Logical puts forth the conceptual groundwork for integrating plans across agency boundaries, and endorses ecosystem-based mitigation - an innovative method of mitigating infrastructure impacts that cannot be avoided.” For additional information, link to Eco-Logical: An Ecosystem Approach to Developing Infrastructure Projects.

SAFETEA-LU Section 6001

Interagency cooperation on ecosystem preservation issues also was encouraged under Section 6001 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).   The provision requires transportation agencies to consult with resource agencies in the statewide and metropolitan planning process, including a comparison of transportation plans to state and tribal conservation plans, maps, and inventories of natural resources, where available.

State wildlife action plans, now available from each state as a condition of receiving federal wildlife grant funding, can help to achieve the goals of Section 6001. The plans programs are intended to evaluate wildlife conservation needs in each state and outline the necessary steps to meet those needs. The plans address eight elements:

• Information on the distribution and abundance of wildlife, including low and declining populations, that describes the diversity and health of the state’s wildlife.
• Descriptions of locations and relative conditions of habitats essential to species in need of conservation.
• Descriptions of problems that may adversely affect species or their habitats, and priority research and survey efforts.
• Descriptions of conservation actions proposed to conserve the identified species and habitats.
• Plans for monitoring species and habitats, and plans for monitoring the effectiveness of the conservation actions and for adapting these conservation actions to respond to new information.
• Descriptions of procedures to review the plan at intervals not to exceed 10 years.
• Coordination with federal, state, and local agencies and Indian tribes in developing and implementing the wildlife action plan.
• Broad public participation in developing and implementing the wildlife action plan.

For additional information, link to State Wildlife Action Plans, on the Teaming with Wildlife web site.

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