When the Service Goes Quiet: ESA Consultation Delays and Schedule Risk

What Clients Should Know Now

U.S. Fish and Wildlife Service (Service) field office staff have been telling project teams, informally but consistently, that the agency has suspended issuance of Biological Opinions, letters of concurrence, and take permits under the Endangered Species Act (ESA). There has been no public announcement and no end date has been offered.

For projects late in environmental review, this may create a significant schedule risk. Biological Opinions and concurrence letters conclude Section 7 consultation for federal actions that may affect listed species or critical habitat, and incidental take permits address otherwise prohibited take before work begins. When finalizing these documents slips, downstream milestones can slip as well.

Why the Pause Is Likely Happening

Several legal and policy developments are affecting these documents concurrently.

• The harm rescission. A final rule removed the regulatory definition of “harm” effective September 14, 2026 (91 Fed. Reg. 43300; July 14, 2026). Habitat modification is no longer treated as take unless it is part of an intentional action directed at specific wildlife.
• The Director’s take memorandum. Issued the same day, it further describes the view that “take” in general is limited to affirmative acts intentionally directed at, and directly and immediately affecting, particular living animals rather than populations or habitat.
• Litigation. The harm rescission and the policy interpretation of take are being challenged in several courts across the country.
• Competing Section 7 frameworks. The Service proposed restoring the 2019 consultation regulations (90 Fed. Reg. 52600; November 21, 2025), and final rules are under White House review. Meanwhile, the March 2026 CBD v. Department of the Interior vacatur reinstated the pre-2019 definitions of “effects of the action” and “destruction or adverse modification” and the pre-2019 mitigation standard. These developments create uncertainty regarding the framework the Service will apply while preparing and reviewing consultation documents.

These changes affect standard language in every Biological Opinion, concurrence, and permit. We expect the Service is revising templates and analysis thresholds and will send project-specific take conclusions for added legal review.

What a Late-Stage Delay Does to the Schedule

By the time a decision document is in draft, other approvals and milestones are often scheduled around it. Whether a delay stops work depends on the project:

• Federal decisions may wait. Some action agencies hold a Record of Decision, Finding of No Significant Impact, or permit until consultation concludes; others issue a conditioned decision and hold only work affecting listed species (see Section 7(d), below).
• Reinitiations mainly delay new work. An existing Biological Opinion may continue to cover ongoing activities, so delay falls mainly on new or modified components.
• Non-federal projects face a choice. The ESA does not require work to wait for an incidental take permit, but proceeding without one carries take liability risk (see Section 9, below). Lenders, local approvals, or other agreements may require the permit anyway.
• Seasonal windows close. A two-month slip can become seven months or more if it pushes clearing or in-water work past an avoidance window.
• Other approvals and contracts may be delayed. State permits, right-of-way agreements, and survey data have shelf lives, and financing, construction, and offtake agreements may be keyed to ESA milestones.

In practice, available mechanisms for compelling compliance with ESA consultation timelines may be limited and are highly fact-specific.

Federal Actions: Section 7(d) and the Irreversible or Irretrievable Commitment of Resources

After initiation of consultation, Section 7(d) prohibits the federal agency and any applicant from making any “irreversible or irretrievable commitment of resources” that has the effect of “foreclosing the formulation or implementation of any reasonable and prudent alternative measures”. Reasonable and prudent alternatives are alternative actions that the Service believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. While the Service holds a Biological Opinion or concurrence letter, consultation remains open and Section 7(d) continues to apply.

Section 7(d) does not stop all activity. Design, contingent procurement, and work in areas with no effects to listed species may proceed if they do not foreclose those alternatives or cause unauthorized take. The action agency, not the Service, makes that determination and should document it in writing for each activity.

Notably, a non-federal project with a pending application for an incidental take permit is also subject to Section 7(d).

Non-Federal Projects: Section 9 and Individual Responsibility

For non-federal projects, the proponent is responsible for avoiding take, with or without a permit. If a pending incidental take permit stalls, or the Service says one is not needed under its new interpretation of take, the proponent must still decide, ideally with legal counsel, whether and how to proceed.

The Service’s current position indicates how the agency presently intends to administer and enforce the ESA, but it does not conclusively establish the governing legal interpretation of take.

Before proceeding without a permit, proponents should weigh:

• Work stoppage. Citizen groups can sue to stop work after giving 60 days’ notice, which could halt construction midstream.
• Potential enforcement exposure. The Service generally has five years from a violation to seek civil and/or criminal penalties. A later administration could pursue enforcement pertaining to take that occurred under today’s narrower policy, although how such a case would play out is untested.
• Other federal consequences. An ESA violation or enforcement action may also affect future eligibility for federal permits, contracts, grants, or other federal programs.
• Lack of assurances. Without a permit, there are no “No Surprises” or other regulatory assurances if conditions change.

Proponents who proceed should document the basis for that decision: survey results, avoidance and minimization measures built into the design and schedule, and written correspondence with the Service, all in consultation with legal counsel. A “no take anticipated” or “no action” letter from the Service helps show good faith, but it is not a permit.

SWCA Lens: Practical Steps to Protect the Schedule

No single strategy will address the delay for every project. These are the tools we are discussing with clients now.

• Approach: Candid, informal conversation with staff on status and next steps
  • What it does: Keeps staff aware of critical milestones and clarifies whether a document is on hold and when action may be expected
  • Limits: Field offices may lack clear direction or visibility into leadership decisions

• Approach: Confirm status of the process in writing
  • What it does: Documents expectations and informs coordination with other parts of the project
  • Limits: Staff may not confirm informal or unannounced direction in writing

• Approach: Section 7(d) determination by the federal action agency
  • What it does: May allow some work to proceed
  • Limits: Limited scope; requires action agency support

• Approach: Conditioned federal decision
  • What it does: Keeps other environmental reviews on schedule, with a construction hold until consultation is complete
  • Limits: Not available for every agency

• Approach: Use existing programmatic consultations or permits
  • What it does: Relies on opinions, determination keys, and programmatic permits already in place
  • Limits: Programs must be available and applicable to the project

• Approach: Elevation to leadership
  • What it does: Raises the issue to regional, headquarters, or Permitting Council level
  • Limits: Works best with a specific ask

• Approach: Avoidance-based design
  • What it does: For non-federal projects, avoiding adverse effects reduces exposure under any reading of take
  • Limits: Does not end citizen-suit risk

The Bottom Line

The pause has no announced end date, and projects late in permitting carry the most risk. A delay does not shift responsibility: federal agencies remain bound by Section 7(d), and non-federal proponents remain responsible for avoiding take under Section 9.

Clients can reduce the impact by acting now. Consider confirming the status of each pending decision document with the Service, in writing where possible. For federal actions, work with the action agency to identify which work can proceed under Section 7(d). For non-federal projects, decide with advice from legal counsel whether and how to proceed without a permit, and document (internally at least) that decision. In either case, adjust schedules, seasonal work windows, and contract milestones to account for potential delay before it affects a critical project milestone.

Please contact our team to discuss how the pause affects a specific project.