Companion Guide to Video August 2012

www.fhwa.dot.gov/federal-aidessentials

There are a number of areas of environmental law 

that local public agencies may encounter on a 

Federal-aid project. These areas address a 

project's effects on:

• The natural environment—meaning the 

air, water, and habitats for endangered 

species

• The social environment—particularly 

related to minority and low-income 

populations

• Historic sites

• Parks and recreation areas

The National Environmental Policy Act, known as 

NEPA, provides a framework for environmental 

analyses, reviews, and consultations. NEPA's

process "umbrella" covers a project's compliance 

with all pertinent Federal environmental laws.

Agencies may recognize a need to comply with an 

environmental law under the NEPA umbrella, but 

it's the environmental law itself that is the source 

of the requirement.

One such law, the Endangered Species Act, 

provides a program for the conservation of 

threatened and endangered plants and animals 

and the critical habitats upon which they depend. 

The list of threatened and endangered species

includes birds, insects, fish, reptiles, mammals, 

crustaceans, flowers, grasses, and trees.

The law requires the Federal Highway 

Administration (FHWA) to use its authorities to help 

conserve listed species and ensure that 

transportation projects are not likely to jeopardize 

the continued existence of any listed species or 

result in the destruction or modification of critical 

habitat. Additionally, the project’s actions cannot 

take listed species without prior approval. The term 

“take” includes harassing, harming, trapping or 

killing.

Environment

Other Laws and Requirements

Endangered Species Act

This law covers the conservation of threatened and 

endangered plants and animals and their critical habitats
Federal-aid Essentials for Local Public Agencies

The Endangered Species Act is enforced by the 

U.S. Fish and Wildlife Service and the Commerce 

Department’s National Marine Fisheries Service. If 

a protected species or critical habitat exists in your 

project area, you must consult with these agencies 

about the project's environmental effects. Once it 

is determined through the Endangered Species 

Act Section 7 consultation process that your 

project will not jeopardize a protected species, it 

can proceed. However, the agencies may require 

mitigation measures and place conditions and 

restrictions on your project.

Now let's look at the consultation 

process and resources that will help 

construct a road through an

environmentally sensitive area.

A simplified overview of the Endangered Species 

Act Section 7 consultation process is as follows: 

First, identify the action or the project. Develop a 

project description that addresses what will be 

done, when, where, and how—including any 

conservation measures that will be implemented.

Identify through the agencies the listed species or 

designated critical habitat that may be affected by 

the project. The project sponsor asks the U.S. Fish 

and Wildlife Service or National Marine Fisheries 

Service whether a protected species may be 

present in the project, or action area. In your letter, 

specify the nature and scope of the project and its 

location. The agencies will respond with a list of 

endangered species in that area. A survey for 

listed species in the action area may be 

warranted.

Next, analyze the effects of the action on the listed 

resources both directly and indirectly using the best 

available science. This analysis is generally called 

a biological assessment. The assessment will 

require expertise regarding the affected species 

and their habitat.

Consult with the agencies. The U.S. Fish and 

Wildlife Service or National Marine Fisheries 

Service will review the biological assessment to 

determine if the action will likely jeopardize the 

continued existence of the species or destroy 

critical habitat. The agencies will also describe the 

type and amount of take on the project along with 

measures needed to reduce the extent of take.

Keep in mind, that if the potential effects on the 

listed resources change from what was consulted 

on, then reinitiating or re-entering the Section 7 

consultation process may be required. 

To illustrate the process, let’s consider 

a project that proposes to widen a 

highway through a wooded area. 

The project team sends a letter to the U.S. Fish 

and Wildlife Service asking for the area's species 

list. The letter describes the need to widen the road 

and stabilize the side slopes by clearing off 

vegetation and cutting into the embankment. The 

correspondence includes a map of their project. 

The U.S. Fish and Wildlife Service informs them 

that their project is in an area that has a threatened 

species of bog turtles and recommends the team 

conduct a survey of the area.
Federal-aid Essentials for Local Public Agencies

The project team hires a respected and 

experienced consultant. Under her direction, the 

bog turtle survey begins. 

The consultant also collaborates with the project 

team and U.S. Fish and Wildlife Service to 

develop the biological assessment. They identify 

the specific side slopes that will be disturbed and 

estimate the time they will need to complete the 

work before it can be re-vegetated. They also 

analyze the preferred method to control storm 

water discharge.

From the assessment of the bog turtle’s needs 

and the project’s potential adverse effects, the 

team outlines a plan that includes:

• Installing a fence around the project area and 

removing the turtles from the area, 

• Implementing a storm water management plan 

that will not degrade the habitat, and 

• Installing turtle crossings.

The U.S. Fish and Wildlife Service reviews the 

biological assessment, conducts its own analysis, 

and publishes a biological opinion that determines 

the project is not likely to jeopardize the continuing 

existence of the bog turtle, but finds that some bog 

turtles will be taken as a result of the project. As a 

result, some limits are placed on the amount of 

acreage and the number of turtles the project can 

disturb.

It is your agency’s responsibility to 

comply with the Endangered 

Species Act; failure to do so may 

result in civil or criminal penalties.

There are a number of resources and practices 

available to help your agency construct roads in 

areas of critical habitat, including:

• Maps of designated critical habitats in your 

area

• An inventory of proven methods for 

minimizing and mitigating impacts to critical 

habitat

• Your agency’s storm water management 

manual that provides guidance, options, and 

tools available to protect critical habitat

• Internal controls for inspecting the project 

and ensuring your agency's follow through 

on all environmental commitments

Your State department of transportation can also 

provide guidance in developing approaches that 

comply with the Endangered Species Act.
Federal-aid Essentials for Local Public Agencies

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• Link to FHWA’s Endangered Species Act Webtool

http://www.environment.fhwa.dot.gov/esawebtool/

• Information on U.S. Fish and Wildlife Service Endangered Species Program

http://www.fws.gov/endangered/

• Information on NOAA Fisheries Endangered Species Act

http://www.nmfs.noaa.gov/pr/laws/esa/