H.R. 1897 — what changed

added “(B) For the purposes of applying subparagraph (A), the term “foreseeable future” means the period of time extending into the future within which the Secretary, based on the best scientific and commercial data available, is able to determine that a factor described in subparagraphs (A) through (E) of section 4(a)(1) is likely to occur with respect to the species.”

“(D)

“(i) For the purpose of designating critical habitat for a threatened species or an endangered species under this Act, the term habitat—

“(I) means the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support 1 or more life processes of the threatened species or endangered species; and

changed “(II) does not include an area visited by only vagrant individual members of the threatened species or endangered species.area—

added “(aa) outside the current or historic range of the threatened species or endangered species; or

added “(bb) visited by only vagrant individual members of the threatened species or endangered species.

“(ii) If the setting described in clause (i)(I) does not support all of the life processes of the relevant threatened species or endangered species, the threatened species or endangered species must be able to access, from the setting, other areas necessary to support its remaining life processes.”

added “(2) The terms best scientific and commercial data available and “best scientific data available”—

added “(A) mean all relevant and objective scientific and commercial information available at the time of the agency action; and

added “(B) include credible and reliable data, quantitative analyses, conceptual and numerical models, and model results that—

added “(i) account for known or potential sources or error;

added “(ii) are applied using prevailing principles, methods, tools, and professional standards of practice; and

added “(iii) are impartially gathered and objectively applied without reliance on precautionary assumptions in favor of a species or other assumptions or policy prescriptions that bias the application.”

removed “(2) The term best scientific and commercial data available includes data submitted to the Secretary by a State, Tribal, or local government.”

changed “(q) Environmental baseline—For the purpose of carrying out a consultation under baseline defined—In this section with respect to a threatened species or an endangered species, section, the term environmental baseline—

changed “(1) means the condition of the species or the critical habitat of the species in the area directly affected by the agency action area, at the time of the proposed agency action, without the consequences to the species or the critical habitat of the species caused by the proposed action; and

“(2) includes—

changed “(A) the past and present effects of all Federal, State, local, and private actions and other human activities in the action area;area directly affected by the agency action;

changed “(B) the anticipated effects of each proposed Federal project within the action area directly affected by the agency action for which a consultation under this section has been completed;

changed “(C) the effects of State and private actions that are contemporaneous with the consultation in process; andprocess;

changed “(D) existing structures and facilities and the past, present, and future effects of the physical existence of such structures and facilities on the species or the critical habitat of the species from the physical existence of such structures and facilities.”species; and

added “(E) the effects of Federal actions being carried out at the time of the proposed agency action and existing Federal facilities that are not within the discretion of the Secretary to modify.”

“(j) National listing work plan

“(1) In general—Not later than the date described in paragraph (2), the Secretary shall submit to Congress a national listing work plan that establishes, for each covered species, a schedule for the completion during the 5-fiscal year period beginning on October 1 of the first fiscal year after the date of the submission of the work plan of—

changed “(A) findings as described in subsection (b)(3)(B) for each such covered species;(b)(3)(B);

changed “(B) any proposed and or final determinations regarding listing each such covered species determination under this section; subsection (a)(1) required by a court order, court decree, or court-approved settlement agreement; and

changed “(C) any proposed and or final designation of critical habitat designations under subsection (a)(3) relating to each such covered species.required by a court order, court decree, or court-approved settlement agreement.

“(2) Submission to Congress

“(A) In general—The Secretary shall submit to Congress—

“(i) together with the budget request of the Secretary for the first fiscal year that begins not less than 365 days after the date of the enactment of this subsection, the initial work plan required under paragraph (1); and

“(ii) together with the budget request of the Secretary for each fiscal year thereafter, an updated work plan under paragraph (1).

changed “(B) Additional inclusions—The Secretary shall include with each budget request referred to in subparagraph (A) a description of the amounts to be requested to carry out the work plan for the fiscal year covered by the budget request, including any amounts requested to address emergency potential future listings if the Secretary identifies any emergency posing a significant risk to the well-being of any species of fish or wildlife or plant.considered on an emergency basis in that fiscal year.

“(3) Priority

“(A) In general—In developing a work plan under this subsection, the Secretary shall assign to each species included in the work plan a priority classification of Priority 1 through Priority 5, such that, as determined by the Secretary, the following apply:

“(i) Priority 1 represents species of the highest priority, to be designated as critically imperiled and in need of immediate action.

“(ii) Priority 2 represents species with respect to which the best scientific and commercial data available support a clear decision regarding the status of the species.

“(iii) Priority 3 represents species with respect to which studies regarding the status of the species are being carried out—

“(I) to answer key questions that may influence the findings of a petition to list the species submitted under subsection (b)(3); and

“(II) to resolve any uncertainty regarding the status of the species within a reasonable timeframe.

changed “(iv) Priority 4 represents species for which proactive conservation efforts likely to reduce threats to the effects of the factors described in subparagraphs (A) through (E) of subsection (a)(1) on the species are being developed or carried out, within a reasonable timeframe and in an organized manner, by Federal agencies, States, landowners, or other stakeholders.

“(v) Priority 5 represents species—

“(I) for which there exists little information regarding—

changed “(aa) threats the effects of the factors described in subparagraphs (A) through (E) of subsection (a)(1) on to the species; or

“(bb) the status of the species; or

“(II) that would receive limited conservation benefit in the foreseeable future by listing the species as a threatened species or endangered species under this section.

changed “(B) Use of methodology—The Secretary shall establish and assign priority classifications under subparagraph (A) in accordance with the notice of the Director of the United States Fish and Wildlife Service titled “Methodology for Prioritizing Status Reviews and Accompanying 12-Month 12–Month Findings on Petitions for Listing Under the Endangered Species Act” (81 Fed. Reg. 49248; published July 27, 2016).2016), or any successor document.

“(C) Extensions for certain priority classifications

“(i) Priority 3—With respect to a species classified as Priority 3 under subparagraph (A)(iii), if the Secretary determines that additional time would allow for more complete data collection or the completion of studies relating to the species, the Secretary may retain the species under the work plan for a period of not more than 5 years after the deadline under paragraph (4).

“(ii) Priority 4—With respect to a species classified as Priority 4 under subparagraph (A)(iv), if the Secretary determines that existing conservation efforts continue to meet the conservation needs of the species, the Secretary may retain the species under the work plan for a period of not more than 5 years after the deadline under paragraph (4).

“(iii) Priority 5—With respect to a species classified as Priority 5 under subparagraph (A)(v), the Secretary may retain the species under the work plan for a period of not more than 5 years after the deadline under paragraph (4).

changed “(D) Revision of priority classification—The Secretary may revise, in accordance with subparagraph (A), the assignment to a priority classification of a species included in a work plan at any time during the fiscal years to which the work plan applies.time.

“(E) Effect of priority classification—The assignment of a priority classification to a species included in a work plan is not a final agency action.

“(4) Deadline—The Secretary shall act on any petition to add a species to a list published under subsection (c) submitted under subsection (b)(3) not later than the last day of the fiscal year specified for that petition in the most recent work plan.

“(5) Regulations—The Secretary may issue such regulations as the Secretary determines appropriate to carry out this subsection.

“(6) Effect of subsection—Nothing in this subsection may be construed to preclude or otherwise affect the emergency listing authority of the Secretary under subsection (b)(7).

“(7) Definitions—In this subsection:

“(A) Covered species—The term covered species means a species that is not included on a list published under subsection (c)—

“(i) for which a petition to add the species to such a list has been submitted under subsection (b)(3); or

“(ii) that is otherwise under consideration by the Secretary for addition to such a list.

“(B) Work plan—The term work plan means the national listing work plan submitted by the Secretary under paragraph (1).”

removed “(C) Any negative finding described in subparagraph (A) and any finding described in subparagraph (B)(i)(I) shall be subject to judicial review.”

changed “(C) In making a determination under subsection (a)(1) with respect to a species, the Secretary shall take into account and document the effect of any net conservation benefit (as that term is defined in subsection (k) of section 10) 10(k)) of any Candidate Conservation Agreement with Assurances or any programmatic Candidate approved Conservation Benefit Agreement with Assurances (as those terms are that term is defined in that subsection) such section) relating to such the species.”

changed “(k) Candidate Conservation Agreements with AssurancesBenefit Agreements

changed “(1) Proposed Agreement—A covered party may submit a proposed Agreement to the Secretary.Agreement

changed “(2) Approval—Not later than 120 days after the date of the receipt of “(A) In general—A covered party may submit a proposed Agreement under paragraph (1), the Secretary shall approve the proposed Agreement if the Secretary determines that to the proposed Agreement—Secretary.

changed “(A) sets forth specific management activities that “(B) Determination of completeness—Not later than 30 days after the covered party will undertake to conserve date on which the covered species;Secretary receives a proposed Agreement, the Secretary shall—

changed “(B) provides a positive estimate of the net conservation benefit of such management activities to “(i) determine whether the covered species;proposed Agreement is complete; and

changed “(C) describes, to “(ii) if the maximum extent practicable, Secretary determines the existing population levels of proposed Agreement is incomplete under clause (i), provide the covered species or the existing quality party with a written explanation of habitat;such determination, including any specific adjustment required for the Secretary to determine the proposed Agreement is complete.

changed “(D) includes “(C) Approval; rejection—Not later than 120 days after the date on which the Secretary receives a monitoring plan to be carried out by proposed Agreement that the parties to Secretary determines under subparagraph (B)(i) is complete, the Agreement; andSecretary shall—

changed “(E) provides assurances to the covered party that no additional conservation measures will be required and additional land, water, or resource use restrictions will not be imposed on “(i) approve the covered party proposed Agreement if the covered species becomes listed after Secretary determines that the effective date of such Agreement.proposed Agreement—

changed “(3) Denial—Not later than 120 days after the date “(I) is in compliance with, as applicable, section 17.22(c)(1) or 17.32(c)(1) of the receipt title 50, Code of Federal Regulations (or a proposed Agreement under paragraph (1), the Secretary shall—successor regulation); and

changed “(A) deny “(II) provides assurances to the proposed Agreement covered party that, if the Secretary determines that the proposed Agreement does not meet covered species becomes listed after the requirements described in paragraph (2); andeffective date of such Agreement—

changed “(B) provide the submitting covered party a written explanation for such determination and the adjustments required for the Secretary to approve such proposed Agreement.“(aa) no additional conservation measures will be required; and

changed “(4) Programmatic Candidate Conservation Agreement with Assurances“(bb) additional land, water, or resource use restrictions will not be imposed on the covered party;

changed “(A) In general—The Secretary may enter into a Candidate Conservation “(ii) reject the proposed Agreement with Assurances with a covered party if the Secretary determines that authorizes such covered party—the proposed Agreement does not meet the requirements described in subclauses (I) and (II) of clause (i); and

changed “(i) to administer such Candidate Conservation “(iii) if the Secretary rejects the proposed Agreement with Assurances;under clause (ii), provide the submitting covered party a written explanation for such rejection, including any specific adjustment required, as of the date on which the Secretary rejects the proposed Agreement, for the Secretary to approve the proposed Agreement.

changed “(ii) to hold any permit issued under this section with regard to such Candidate “(2) Programmatic Conservation Benefit Agreements—The Secretary may enter into a Conservation Benefit Agreement with Assurances;a covered party that authorizes such covered party—

changed “(iii) “(A) to enroll other covered parties within the area covered by such Candidate Conservation Agreement with Assurances in administer such Candidate Conservation Agreement with Assurances; andBenefit Agreement;

changed “(iv) “(B) to convey hold any permit authorization held by such covered party issued under clause (ii) this section with regard to each covered party enrolled under clause (iii).such Conservation Benefit Agreement;

changed “(B) Publication—Upon receipt of a proposed programmatic Candidate “(C) to enroll other covered parties within the area covered by such Conservation Benefit Agreement with Assurances under paragraph (1) and before approving or denying in such a proposed programmatic Candidate Conservation Agreement with Assurances under paragraph (2) or (3), respectively, the Secretary shall—Benefit Agreement; and

changed “(i) not later than 30 days after the date of “(D) to convey any permit authorization held by such receipt, publish the proposed programmatic Candidate Conservation Agreement with Assurances in the Federal Register for public comment for a period of not less than 60 days;covered party under clause (ii) to each covered party enrolled under clause (iii).

changed “(ii) review any comments received “(3) Take authorization—If a covered species is listed as a threatened species or an endangered species under clause (i); andsection 4, the Secretary, consistent with the applicable Agreement, shall issue to the relevant covered party a permit under this section for the incidental take of and modification to the habitat of such covered species by such covered party.

changed “(iii) after “(4) Technical assistance—The Secretary shall, upon the close request of the public comment period for a covered party, provide the proposed programmatic Candidate Conservation Agreement covered party with Assurances, publish technical assistance in the Federal Register—developing a proposed Agreement.

changed “(I) “(5) Applicability to Federal land—An Agreement may apply with respect to a covered party that conducts activities on land administered by any comments received under clause (i); andFederal agency pursuant to a permit or lease issued to the covered party by that Federal agency.

changed “(II) the approval or denial of the proposed programmatic Candidate Conservation Agreement with Assurances under paragraph (2) or (3), respectively.“(6) Exemptions

changed “(5) Incidental take authorization—If a covered species is listed under section 4, “(A) Consultation—Section 7(a)(2) does not apply to the approval by the Secretary shall issue of a permit to the relevant covered party proposed Agreement under this section allowing incidental take of and modification to the habitat of such covered species consistent with the Agreement.subsection.

changed “(6) Technical assistance—The Secretary shall, upon request, provide “(B) Disclosure—Information submitted by a covered private party with technical assistance in developing a proposed Agreement.to the Secretary pursuant to this subsection shall be exempt from disclosure under section 552(b)(3)(B) of title 5, United States Code.

changed “(7) Applicability to Federal land—An “(C) National Environmental Policy Act of 1969—The approval by the Secretary of a proposed Agreement may apply to under this subsection shall not be considered a covered party that conducts activities on land administered by any major Federal agency pursuant to a permit or lease issued to action under section 102(2)(C) of the covered party by that Federal agency.National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

changed “(8) Exemption from consultation requirement—An Agreement approved under “(7) Definitions—In this subsection shall be deemed to have been granted an exemption under section 7(h) for the purposes of that section.subsection:

changed “(9) Exemption from disclosure—Information submitted by “(A) Affected species—The term affected species means a private party to the Secretary under this subsection shall be exempt from disclosure under section 552(b)(3)(B) of title 5, United States Code.species—

changed “(10) Definitions—In “(i) designated by the Secretary as a candidate species under this subsection:Act;

changed “(A) Agreement—The term Agreement means—“(ii) proposed to be listed pursuant to section 4; or

changed “(i) “(iii) that is declining and at risk of being designated by the Secretary as a Candidate Conservation Agreement with Assurances; orcandidate species under this Act.

changed “(ii) a programmatic Candidate Conservation “(B) Agreement—The term Agreement with Assurances.means—

changed “(B) Candidate Conservation Agreement with Assurances—The term Candidate Conservation Agreement with Assurances means any voluntary agreement, including a conservation benefit agreement, between the Secretary and “(i) a covered party in which—Conservation Benefit Agreement; or

changed “(i) the covered party commits to implementing mutually agreed upon conservation measures for “(ii) a candidate species; andprogrammatic Conservation Benefit Agreement.

changed “(ii) “(C) Conservation Benefit Agreement—The term “Conservation Benefit Agreement” means the Secretary provides assurances that, if such candidate species is listed pursuant supporting document required for the issuance of a permit under subsection (a)(1)(A) to section 4—enhance the propagation or survival of an affected species, as described in the final rule issued by the United States Fish and Wildlife Service titled “Endangered and Threatened Wildlife and Plants; Enhancement of Survival and Incidental Take Permits” (89 Fed. Reg. 26070; published April 12, 2024).

removed “(I) the covered party shall incur no additional obligations beyond actions agreed to in the agreement with respect to conservation activities required under this Act; and

removed “(II) no additional land, water, or resource use restrictions shall be imposed on the covered party beyond those included in the agreement.

removed “(C) Candidate species—The term candidate species means a species—

removed “(i) designated by the Secretary as a candidate species under this Act; or

removed “(ii) proposed to be listed pursuant to section 4.

“(D) Covered party—The term covered party means a—

“(i) party that conducts activities on land administered by a Federal agency pursuant to a permit or lease issued to the party;

“(ii) private property owner;

“(iii) county;

“(iv) State or State agency; or

“(v) Tribal government.

added “(E) Covered species—The term covered species means, with respect to an Agreement, the affected species that is the subject of such Agreement.

added “(F) Net conservation benefit—The term net conservation benefit means the net effect of an Agreement on the covered species, determined by comparing the existing situation of the covered species without the Agreement in effect and a situation in which the Agreement is in effect, including the net effect on—

added “(i) the effects of the factors described in subparagraphs (A) through (E) of subsection (a)(1) on the covered species;

added “(ii) the number of individuals of the covered species; or

added “(iii) the habitat of the covered species.

changed “(E) Covered species—The “(G) Programmatic Conservation Benefit Agreement—The term covered species means, with respect to an Agreement, the species that is the subject of such Agreement.programmatic Conservation Benefit Agreement means a Conservation Benefit Agreement described in paragraph (4).”

removed “(F) Net conservation benefit—The term net conservation benefit means the net effect of an Agreement, determined by comparing the existing situation of the candidate species without the Agreement in effect and a situation in which the Agreement is in effect, on a candidate species, including—

removed “(i) the net effect on threats to such species;

removed “(ii) the net effect on the number of individuals of such species; or

removed “(iii) the net effect on the habitat of such species.

removed “(G) Programmatic Candidate Conservation Agreement with Assurances—The term programmatic Candidate Conservation Agreement with Assurances means a Candidate Conservation Agreement with Assurances described in paragraph (4)(A).”

changed “(D) Each Federal agency shall, as applicable and to the maximum extent practicable, adopt the mitigation measures contained in a permit issued under subparagraph (B) in any authorization issued by such Federal agency with respect to the action that is the subject of covered by such permit.

changed “(E) With respect to an action that is the subject of covered by a permit issued under subparagraph (B), (B) and consistent with the implementation of the related conservation plan, the Secretary shall not seek any additional mitigation measures through any other Federal or State or local process.”process from the permittee.”

changed “(3) A permit issued Section 7(a)(2) does not apply to the issuance by the Secretary of a permit under this subsection shall be deemed to have been granted an exemption under section 7(h) for the purposes of that section.”subsection.”

Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is amended—

“(d) Protective regulations

changed “(1) In general—Whenever any species is listed as a threatened species pursuant to subsection (c), the Secretary shall issue such regulations as are necessary and advisable to provide for the conservation of that species.Issuance

added “(A) In general—Whenever any species is listed as a threatened species pursuant to subsection (c), the Secretary shall issue such regulations as are necessary and advisable to provide for the conservation of that species.

added “(B) Requirement—In issuing a regulation under subparagraph (A), the Secretary, consistent with the findings, purposes, and policy described in section 2 and based on the best scientific and commercial data available, shall consider the conservation and economic effects of such regulation.

“(2) Recovery goals

“(A) In general—If the Secretary issues a regulation under paragraph (1) that prohibits an act described in section 9(a), the Secretary shall, with respect to the species that is the subject of such regulation—

“(i) establish objective, incremental recovery goals;

“(ii) provide for the stringency of such regulation to decrease as such recovery goals are met; and

“(iii) provide for State management within such State, if such State is willing to take on such management, beginning on the date on which the Secretary determines that each such recovery goal is met and, if each such recovery goal remains met, continuing until such species is removed from the list of threatened species published pursuant to subsection (c).

“(B) Status review—On the date on which the Secretary determines that each recovery goal established under subparagraph (A)(i) for a species is met, the Secretary shall begin a review of the species and subsequently determine, on the basis of such review, whether the species should be removed from the lists published pursuant to subsection (c)(1).

“(3) Cooperative agreement—A regulation issued under paragraph (1) that prohibits an act described in section 9(a) with respect to a resident species shall apply with respect to a State that has entered into a cooperative agreement with the Secretary pursuant to section 6(c) only to the extent that such regulation is adopted by such State.

“(4) State recovery strategy

“(A) In general—A State may develop a recovery strategy for a threatened species or a candidate species and submit to the Secretary a petition for the Secretary to use such recovery strategy as the basis for any regulation issued under paragraph (1) with respect to such species within such State.

“(B) Approval or denial of petition—Not later than 120 days after the date on which the Secretary receives a petition submitted under subparagraph (A), the Secretary shall—

“(i) approve such petition if the Secretary determines the recovery strategy is reasonably certain to be implemented by the petitioning State and to be effective in conserving the species that is the subject of such recovery strategy; or

“(ii) deny such petition if the requirements described in clause (i) are not met.

added “(C) Publication—Not later than 60 days after the date on which the Secretary approves or denies a petition under subparagraph (B), the Secretary shall publish such approval or denial on the website of the applicable department.

removed “(C) Publication—Not later than 30 days after the date on which the Secretary approves or denies a petition under subparagraph (B), the Secretary shall publish such approval or denial in the Federal Register.

“(D) Denial of petition

“(i) Written explanation—If the Secretary denies a petition under subparagraph (B), the Secretary shall include in such denial a written explanation for such denial, including a description of the changes to such petition that are necessary for the Secretary to approve such petition.

“(ii) Resubmission of denied petition—A State may resubmit a petition that is denied under subparagraph (B).

“(E) Use in protective regulations—If the Secretary approves a petition under subparagraph (B), the Secretary shall—

“(i) issue a regulation under paragraph (1) that adopts the recovery strategy as such regulation with respect to the species that is the subject of such recovery strategy within the petitioning State; and

“(ii) establish objective criteria to evaluate the effectiveness of such recovery strategy in conserving such species within such State.

“(F) Revision—If a recovery strategy that is adopted as a regulation issued under paragraph (1) is determined by the Secretary to be ineffective in conserving the species that is the subject of such recovery strategy in accordance with the objective criteria established under subparagraph (E)(ii) for such recovery strategy, the Secretary shall revise such regulation and reissue such regulation in accordance with paragraph (1).”

“(iv) with respect to an endangered species, objective, incremental recovery goals in accordance with subsection (d)(2)(A) for use under that subsection if such endangered species is changed in status from an endangered species to a threatened species under subsection (c)(2)(B)(ii).”

added “(A)

added “(i) The Secretary, by regulation promulgated in accordance with subsection (b) and to the maximum extent prudent and determinable—

added “(I) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and

added “(II) may, from time-to-time thereafter as appropriate, revise such designation.

added “(ii) The Secretary may determine, based on the best scientific data available, that it is not prudent to designate habitat as described in clause (i)(I) for a species, including if the Secretary determines—

added “(I) the species is determined under paragraph (1) to be a threatened species or an endangered species because of take or other human activity and such designation will increase the degree of such take or other human activity;

added “(II) the species is determined under paragraph (1) to be a threatened species or an endangered species because of a factor—

added “(aa) other than that described in subparagraph (A) of that paragraph; or

added “(bb) that cannot be addressed through reasonable and prudent alternatives resulting from consultations carried out pursuant to section 7(a)(2); or

added “(III) the species primarily occurs in areas not under the jurisdiction of the United States and areas under the jurisdiction of the United States where the species occurs provide no more than a negligible conservation value to the species.

added “(iii) Notwithstanding clause (i)(I), if the Secretary determines under clause (ii) that it is not prudent to designate habitat as described in clause (i)(I), the Secretary is not required to so designate habitat for the species.”

added “(C) The Secretary may not designate as critical habitat under subparagraph (A) any privately owned or controlled land or other geographical area that is subject to a land management plan that—

added “(i) the Secretary determines is similar in nature to an integrated natural resources management plan described in section 101 of the Sikes Act (16 U.S.C. 670a);

added “(ii)

added “(I) is prepared in cooperation with the Secretary and the head of each applicable State fish and wildlife agency of each State in which such land or other geographical area is located; or

added “(II) is submitted to the Secretary in a manner that is similar to the manner in which an applicant submits a conservation plan to the Secretary under section 10(a)(2)(A);

added “(iii) includes an activity or a limitation on an activity that the Secretary determines will likely conserve the species concerned;

added “(iv) the Secretary determines will result in—

added “(I) an increase in the population of the species concerned above the population of such species on the date that such species is listed as a threatened species or an endangered species; or

added “(II) maintaining the same population of such species on the land or other geographical area as the population that would likely occur if such land or other geographical area is designated as critical habitat; and

added “(v) to the maximum extent practicable, will minimize and mitigate the impacts of any activity that will likely result in an incidental taking of the species concerned.”

added “(B) In addition to any area otherwise considered by the Secretary for exclusion from critical habitat under subparagraph (A), the Secretary shall consider for exclusion from critical habitat any area—

added “(i) submitted by a person through public comment pursuant to paragraph (5) or (6); and

added “(ii) for which such submission includes credible information regarding a meaningful economic impact, impact on national security, impact on existing efforts of private landowners to conserve the applicable species, or other relevant impact of specifying the area as critical habitat that supports the exclusion from critical habitat of that area.”

added “(I) a draft economic analysis that identifies any impacts on national security and existing efforts of private landowners to conserve the applicable species and other relevant impacts of the designation or revision that the Secretary determines are within the area proposed for designation or covered by the revision; and

added “(II) a draft exclusion analysis that identifies each area the Secretary has reason to consider for exclusion under paragraph (2) and why; and”

added “(aa) a final economic analysis that identifies any impacts on national security and existing efforts of private landowners to conserve the applicable species and other relevant impacts of the revision that the Secretary determines are within the area covered by the revision; and

added “(bb) a final exclusion analysis that identifies each area the Secretary has determined under paragraph (2) to exclude from such revision and why;”

added “(aa) a final economic analysis that identifies any impacts on national security and existing efforts of private landowners to conserve the applicable species and other relevant impacts of the designation that the Secretary determines are within the area proposed for designation; and

added “(bb) a final exclusion analysis that identifies each area the Secretary has determined under paragraph (2) to exclude from such designation and why; or”

removed The final rule titled “Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants” (84 Fed. Reg. 44753; published August 27, 2019) shall have the force and effect of law.

added Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended—

removed “(C) The Secretary may not designate as critical habitat under subparagraph (A) any privately owned or controlled land or other geographical area that is subject to a land management plan that—

removed “(i) the Secretary determines is similar in nature to an integrated natural resources management plan described in section 101 of the Sikes Act (16 U.S.C. 670a);

removed “(ii)

removed “(I) is prepared in cooperation with the Secretary and the head of each applicable State fish and wildlife agency of each State in which such land or other geographical area is located; or

removed “(II) is submitted to the Secretary in a manner that is similar to the manner in which an applicant submits a conservation plan to the Secretary under section 10(a)(2)(A);

removed “(iii) includes an activity or a limitation on an activity that the Secretary determines will likely conserve the species concerned;

removed “(iv) the Secretary determines will result in—

removed “(I) an increase in the population of the species concerned above the population of such species on the date that such species is listed as a threatened species or an endangered species; or

removed “(II) maintaining the same population of such species on the land or other geographical area as the population that would likely occur if such land or other geographical area is designated as critical habitat; and

removed “(v) to the maximum extent practicable, will minimize and mitigate the impacts of any activity that will likely result in an incidental taking of the species concerned.”

Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended by adding at the end the following:

changed “(9) The Secretary shall make publicly available on the Internet the best scientific and commercial data available that are used as the basis for each regulation, including each proposed regulation, promulgated under paragraphs (1) and (3) of subsection (a), except that—“(9)

changed “(A) at The Secretary shall make publicly available on the request of a Governor, State agency, or legislature website of a State, the Secretary may not make such applicable department the best scientific and commercial data available under this paragraph if such entity determines that public disclosure of such data is prohibited by a law or regulation of such State, including any law or regulation requiring used as the protection basis for each regulation, including each proposed regulation, promulgated under paragraphs (1) and (3) of personal information; andsubsection (a).

changed “(B) not later than 30 days after the date of the enactment of this paragraph, the Secretary shall execute an agreement with the Secretary If a Governor, agency, or legislature of Defense a State determines that prevents the public disclosure under this paragraph of classified information pertaining to Department any best scientific and commercial data available described in subparagraph (A) is prohibited by a law or regulation of Defense personnel, facilities, lands, the State, including such a law or waters.”regulation requiring the protection of personal information—

added “(i) the Governor, agency, or legislature of the State may submit to the Secretary a request to exempt such best scientific and commercial data available from the application of subparagraph (A); and

added “(ii) the Secretary shall so exempt such best scientific and commercial data available.

added “(C) Subparagraph (A) does not apply with respect to global positioning system coordinates or other geographically specific species location information.

added “(D) Not later than 30 days after the date of the enactment of this paragraph, the Secretary shall execute an agreement with the Secretary of War that prevents the disclosure under this paragraph of classified information pertaining to Department of War personnel, facilities, lands, or waters.”

“13. Disclosure of expenditures

changed “(a) Requirement—The Secretary Chair of the Interior, Council on Environmental Quality, in consultation with the Secretary of the Interior and Secretary of Commerce, shall—

changed “(1) not later than 90 days after the end of each fiscal year, submit to the Committee on Natural Resources of the House of Representatives and the Committee on Environment and Public Works of the Senate an annual report detailing Federal Government expenditures for covered suits during the preceding fiscal year (including the information described in subsection (b)); year; and

“(2) make publicly available through the Internet a searchable database, updated monthly, of the information described in subsection (b).

changed “(b) Included information—The information—Each report submitted under subsection (a) shall include—

changed “(1) the case name and number of each covered suit, and, with respect to each such covered suit, a hyperlink to each settlement decision, final decision, consent decree, stipulation of dismissal, release, interim decision, motion to dismiss, partial motion for summary judgement, or related final document;

“(2) a description of each claim or cause of action in each covered suit;

changed “(3) the name of each covered agency the actions of which give rise to any claim in a covered suit and each plaintiff in such covered suit;

“(4) funds expended by each covered agency (disaggregated by agency account) to receive and respond to notices referred to in section 11(g)(2) or to prepare for litigation of, litigate, negotiate a settlement agreement or consent decree in, or provide material, technical, or other assistance in relation to, a covered suit;

“(5) the number of full-time equivalent employees that participated in the activities described in paragraph (4);

“(6) any information required to be published under section 1304 of title 31, United States Code, with respect to a covered suit; and

“(7) attorneys fees and other expenses (disaggregated by agency account) awarded in covered suits, including any consent decrees or settlement agreements (regardless of whether a decree or settlement agreement is sealed or otherwise subject to nondisclosure provisions), including the basis for such awards.

changed “(c) Requirement To to provide information—The head of each covered agency shall provide to the Secretary Chair of the Council on Environmental Quality in a timely manner all information requested by the Secretary Chair to comply with the requirements of this section.

“(d) Limitation on disclosure—Notwithstanding any other provision of this section, this section shall not affect any restriction in a consent decree or settlement agreement on the disclosure of information that is not described in subsection (b).

“(e) Definitions—In this section:

“(1) Covered agency—The term covered agency means any agency of the—

“(A) Department of the Interior;

“(B) Forest Service;

“(C) Environmental Protection Agency;

“(D) National Marine Fisheries Service;

“(E) Bonneville Power Administration;

“(F) Western Area Power Administration;

“(G) Southwestern Power Administration; or

“(H) Southeastern Power Administration.

“(2) Covered suit—The term covered suit means—

“(A) any civil action containing any claim arising under this Act against the Federal Government and based on the action of a covered agency; and

changed “(B) any administrative proceeding under which the United States Federal Government awards fees and other expenses to a third party under section 504 of title 5, United States Code.”

changed Section 11(g)(4) of the Endangered Species Act of 1973 (16 U.S.C. 1540(g)(4)) is amended by striking “to any party, whenever the court determines such award is appropriate” and inserting “in accordance with section 2412 of title 28, United States Code and section 504 of title 5, United States Code”.to read as follows:

added “(4)

added “(A) The court, in issuing any final order in any suit brought pursuant to paragraph (1), may award costs of litigation (including reasonable attorney and expert witness fees) to an eligible party, whenever the court determines such award is appropriate.

added “(B) In awarding reasonable attorney and expert witness fees under subparagraph (A) in a suit brought pursuant to paragraph (1), the court—

added “(i) shall base such fees on the prevailing market rates for the kind and quality of services furnished; and

added “(ii) may not award—

added “(I) such fees at a rate that exceeds $125 per hour unless the court determines a higher rate is justified because of cost of living or a special factor, such as the limited availability of qualified attorneys for such suit; or

added “(II) more than $200,000 total in such fees in a single such suit.

added “(C)

added “(i) In this paragraph, the term “eligible party”—

added “(I) means a party to a suit brought pursuant to paragraph (1) that is, as of the date on which the suit was initiated—

added “(aa) an individual who has a net worth of not more than $2,000,000;

added “(bb) an owner of an unincorporated business or a partnership, corporation, association, unit of local government, or organization, including an organization that is described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of such Code, that has—

added “(AA) a net worth of not more than $7,000,000, including both personal and business interests; and

added “(BB) not more than 500 employees; or

added “(cc) a cooperative association (as that term is defined in section 15(a) of the Agriculture Marketing Act (12 U.S.C. 1141j(a))); and

added “(II) does not include a party to a suit brought pursuant to paragraph (1) otherwise described in clause (i) of this subparagraph that has sought to recover attorney or expert witness fees under this subsection in 3 or more instances in the 12-month period preceding the date on which the final order in such suit is issued, including in such suit.

added “(ii) Where 2 or more parties to a suit brought pursuant to paragraph (1) are co-plaintiffs and each such party individually is an eligible party, clause (i)(I) shall be applied to such parties collectively.”

Section 4(a) of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)) is amended by adding at the end the following:

changed “(4)“(5)

“(A) The Secretary shall, concurrently with determining under paragraph (1) whether a species is a threatened species or an endangered species, prepare an analysis with respect to such determination of—

“(i) the economic effect;

“(ii) the effects on national security;

“(iii) the effects on human health and safety; and

“(iv) any other relevant effect.

changed “(B) Nothing The analysis is to be prepared in this paragraph shall delay a determination made by the Secretary under paragraph (1) or change coordination with the criteria used States, local governments, and Tribes impacted by the Secretary to make such a determination.”determination.

added “(C) Nothing in this paragraph shall delay a determination made by the Secretary under paragraph (1) or change the criteria used by the Secretary to make such a determination.”

Section 7(b)(4) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(4)) is amended—

Section 7(b) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)) is amended by adding at the end the following:

“(5)

changed “(A) With respect to an ongoing Federal agency action for which the applicable Federal agency has adopted a reasonable and prudent alternative or a reasonable and prudent measure to comply with subsection (a)(2), in any subsequent consultation for the Federal agency action that occurs 10 years or more after the date on which the initial consultation for the Federal agency action was completed, the Secretary shall—shall determine whether continuing to implement the reasonable and prudent alternative or reasonable and prudent measure will materially increase the likelihood of and reduce the time for recovery of the applicable threatened species or endangered species.

changed “(i) project “(B) If the Secretary determines under subparagraph (A) that continued implementation of the reasonable and prudent alternative or reasonable and prudent measure will not materially increase the likelihood of and timeline shorten the time for the recovery of the applicable threatened species and or endangered species affected by species, the Federal agency action; andshall discontinue implementation of the reasonable and prudent alternative or reasonable and prudent measure notwithstanding subsection (a)(2).”

removed “(ii) determine whether continuing to implement the reasonable and prudent alternative or a reasonable and prudent measure will materially increase the likelihood of and reduce the time for recovery of the threatened species and endangered species.

removed “(B) If the Secretary finds under subparagraph (A)(ii) that continued implementation of the modification will not materially improve the likelihood of and shorten the time to the recovery of the species, the Federal agency shall discontinue implementation of the modification notwithstanding subsection (a)(2).”

changed Section 7(a)(2) 7(a) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)) is amended by inserting “A consultation carried out pursuant to this paragraph shall consider the effects that are reasonably certain to be caused by adding at the action without a substantive presumption in favor of end the species” after “commercial data available.”.following:

added “(5)

added “(A) In carrying out a consultation under paragraph (2) or a conference under paragraph (4), the Secretary—

added “(i) except as provided in clause (ii), may only consider the effects of the action that is the subject of such consultation or conference that the Secretary determines, based on clear and substantial information, using the best scientific and commercial data available, and in accordance with subparagraphs (B) and (C), respectively, are caused by the action itself and are reasonably certain to occur; and

added “(ii) shall consider as a beneficial effect of the action that is the subject of such consultation or conference any avoidance, minimization, or mitigation measure proposed by the applicable Federal agency or the applicant, if any.

added “(B) In determining whether an effect of an action described in subparagraph (A)(i) is caused by the action itself, the Secretary shall consider whether—

added “(i) the effect is so remote in time from the action under consultation that it is not reasonably certain to occur;

added “(ii) the effect is so geographically remote from the immediate area involved in the action that it is not reasonably certain to occur;

added “(iii) the effect is only reached through a lengthy causal chain such that the effect not reasonably certain to occur;

added “(iv) the applicable Federal agency does not have the ability to prevent the effect due to its limited statutory authority; or

added “(v) would occur regardless of whether the action is carried out.

added “(C) In determining whether an effect of an action described in subparagraph (A)(i) is reasonably certain to occur, the Secretary shall consider factors including the following:

added “(i) Experiences with other such actions that are similar in scope, nature, and magnitude to the applicable such action.

added “(ii) Plans for such action.

added “(iii) Any economic, administrative, or legal requirement necessary for the action to be carried out that has not been fulfilled.

added “(iv) Whether the effect has been observed previously and to what extent.

added “(D) In carrying out a consultation under paragraph (2) or a conference under paragraph (4), the Secretary may not consider an effect of the action that is the subject of such consultation or conference for which there is not clear and substantial information for the Secretary to base a determination on under subparagraph (A)(i) that the effect of the action is reasonably certain to occur.

added “(E) In this paragraph, the terms “effect of the action” and “effects of the action” mean a consequence or all consequences, respectively, to listed species or critical habitat that is or are caused by the proposed action.”

changed Section 7(a) 7(b)(3)(A) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)) 1536(b)(3)(A)) is amended by adding at the end the following:to read as follows:

changed “(5) For the purposes of a consultation carried out pursuant to paragraph (2) or a conference carried out under paragraph (4), the Secretary may only determine that the action that is the subject of such consultation or conference is likely to jeopardize the continued existence of an applicable species or result in the destruction or adverse modification of habitat of such a species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical if the Secretary determines, based on the best scientific and commercial data available, that the effects that are reasonably certain to be caused by the action are likely to result in the action itself causing such jeopardy.”“(A)

added “(i) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a), the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat within the area directly affected by the agency action, which such area may not be speculative or remote in time or distance from the agency action. In so doing, the Secretary shall differentiate the effects of the agency action from the environmental baseline.

added “(ii) If jeopardy or adverse modification is found, the Secretary, in cooperation and consultation with the Federal agency and applicant, if any, shall consider a range of reasonable and prudent alternatives and suggest from among that range those reasonable and prudent alternatives which the Secretary believes—

added “(I) would not violate subsection (a)(2);

added “(II) can be taken by the Federal agency or applicant, if any, in implementing the agency action;

added “(III) are economically and technologically feasible for the Federal agency and applicant, if any, to implement; and

added “(IV) impose the fewest economic and other relevant costs for the applicant, if any.”

Section 9(c)(2) of Endangered Species Act of 1973 (16 U.S.C. 1538(c)(2)) is amended to read as follows:

“(2) An export from or import into the United States of fish or wildlife listed as a threatened species or an endangered species pursuant to section 4 is lawful under this Act and not subject to permit requirements or other regulations issued by the Secretary with respect to exportation and importation pursuant to this Act if—

changed “(A) such fish or wildlife is a species that is not native to the United States; andwildlife—

added “(i) is a species that is not native to the United States; and

added “(ii) is listed in Appendix I or II of the Convention; and

“(B) with respect to the export or import, each applicable requirement—

“(i) of the Convention is satisfied; and

“(ii) of subsections (d), (e), and (f) is satisfied.”

changed Section 10(a)(1)(A) 10(a)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1539(a)(1)(A)) 1539(a)(1)) is amended to read as follows:amended—

added “(A)

added “(i) with respect to a species that is native to the United States, any act otherwise prohibited by section 9 for scientific purposes or to enhance the propagation or survival of the affected species, including acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j); and

added “(ii) with respect to a species that is not native to the United States, any act otherwise prohibited by section 9 that the Secretary determines is not detrimental to the survival of the species, including—

added “(I) the export or import, delivery, receipt, carrying, transporting, or shipping in interstate or foreign commerce; and

added “(II) buying or selling or offering for sale in interstate or foreign commerce; or”

added “(C) In this subsection, the term “is not detrimental to the survival of the species” means—

added “(i)

added “(I) will not have a negative effect on the status of the species in the wild;

added “(II) is not a use or removal from the wild that will result in the loss or destruction of critical habitat of the species; and

added “(III) will not directly interfere with recovery efforts with respect to the species; or

added “(ii) is an activity—

added “(I) involving wildlife described in section 17.21(g)(1) of title 50, Code of Federal Regulations; and

added “(II) that satisfies the conditions for registration under clauses (iii) through (v) of that section.”

removed “(A)

removed “(i) with respect to a species that is native to the United States, any act otherwise prohibited by section 9 for scientific purposes or to enhance the propagation or survival of the affected species, including acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j); and

removed “(ii) with respect to a species that is not native to the United States, any act otherwise prohibited by section 9 that the Secretary determines is not detrimental to the survival of the affected species, including—

removed “(I) to export or re-import, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity;

removed “(II) to buy or sell or offer for sale in interstate or foreign commerce; and

removed “(III) acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j); or”