The Nongame and Endangered Species Conservation Act does not apply to any action of an exempt party in furtherance of its lawful duties associated with designing, constructing, reconstructing, repairing, operating, or maintaining transportation infrastructure, except that:

(1) This exemption does not extend to any state agency as defined in section 37-807 performing any action that would require consultation pursuant to subsection (3) of section 37-807 if such state agency is not actually engaged in designing, constructing, reconstructing, repairing, operating, or maintaining transportation infrastructure; and

(2) The Nongame and Endangered Species Conservation Act applies to any initial action by an exempt party that creates new transportation infrastructure in areas not previously dedicated to the exempt party's lawful duties or any subsequent action that increases the area of existing transportation infrastructure.