What changed between these versions
v2 is a complete substitute amendment that significantly restructures and expands the proposed changes to the Endangered Species Act of 1973. It introduces new definitions, modifies listing and critical habitat designation processes, alters appropriations, and establishes new judicial review and exemption provisions, effectively renaming the Act to the "Endangered Species Recovery Act."
Overview
Extensive changes throughout the bill. · v2 fundamentally restructures and expands the proposed amendments, introducing new policy directions and detailed procedural requirements not present in v1.
v2 represents a fundamental restructuring of the proposed amendments to the Endangered Species Act, effectively replacing v1 with a new legislative text. A key change is the renaming of the entire Act to the "Endangered Species Recovery Act." Major modifications include a narrowed scope for the national listing work plan, a complete overhaul of private land conservation agreements from "Candidate Conservation Agreements with Assurances" to "Conservation Benefit Agreements," and significant new criteria for critical habitat designations and litigation cost awards. Additionally, v2 introduces new provisions for congressional notification on large critical habitat designations and experimental population releases, and expands the exemption process under Section 7.
Major additions
This new section renames the entire Endangered Species Act of 1973 to the "Endangered Species Recovery Act" and mandates that all future references in U.S. records reflect this new name.
This is a symbolic and substantive change, signaling a shift in legislative emphasis from mere protection to active recovery. It affects all future legal and administrative references to the Act.
Amends Section 4(b)(1)(A) and 4(b)(2)(A) of the ESA to explicitly require the Secretary to take into account and consider "data submitted to the Secretary by a State, Tribal, or local government" when making listing determinations and critical habitat designations.
This addition elevates the importance of data from State, Tribal, and local governments in critical ESA decisions, potentially influencing outcomes by ensuring a broader range of information is formally considered.
Adds a new Section 4(a)(4) to the ESA, stipulating that if a species is determined to be threatened or endangered in only a significant portion of its range, the Secretary may only list the species with respect to that specific portion.
This clarifies the scope of listings, potentially limiting the geographic extent of protections for species that are only imperiled in specific areas, which could affect land use and conservation efforts in other parts of their range.
Adds a new Section 4(c)(4) to the ESA, specifying that a species can only be removed from a list if the Secretary determines it is extinct, not a threatened or endangered species, or not a species.
This codifies the specific conditions under which a species can be delisted, providing clear criteria for recovery or reclassification decisions and potentially reducing ambiguity in the delisting process.
Adds a new Section 4(a)(3)(D) to the ESA, requiring the Secretary to notify specific Congressional committees of any proposed critical habitat designation exceeding 50,000 acres. The notification must include detailed analyses of natural resource uses, economic impacts, and consultations.
This provision increases Congressional oversight over large critical habitat designations, potentially leading to greater scrutiny and debate over the economic and social impacts of such designations.
Adds a new Section 10(j)(4) to the ESA, requiring the Secretary to notify specific Congressional committees of any proposed release of an experimental population covering an area greater than 50,000 acres. The notification must include detailed analyses similar to those for critical habitat designations.
Similar to critical habitat notification, this increases Congressional oversight for large-scale experimental population releases, potentially impacting the implementation and scope of species reintroduction efforts.
Amends Section 18 of the ESA to require the Fish and Wildlife Service to make its annual cost analysis publicly available on data.gov and to include expenditures related to experimental populations.
This enhances transparency regarding the financial costs associated with ESA implementation, particularly for experimental populations, providing greater public and Congressional access to expenditure data.
Amends Section 7(b)(3)(A) of the ESA to clarify that the "action area" for the Secretary's opinion must not be speculative or remote in time or distance. It also adds criteria for reasonable and prudent alternatives, requiring them to be economically and technologically feasible and to impose the fewest economic and other relevant costs for the applicant.
This change could narrow the geographic and temporal scope of environmental reviews under ESA Section 7 and introduces new economic feasibility considerations for proposed alternatives, potentially reducing the burden on project applicants.
Amends Section 7(n) of the ESA to allow any person to obtain judicial review of any opinion issued by the Secretary under Section 7(b) in the United States Court of Appeals for the District of Columbia within 150 days of issuance.
This creates a new, specific avenue for judicial review of biological opinions, potentially increasing litigation against the Secretary's decisions and centralizing such challenges in the D.C. Circuit.
Substantially rewrites Section 7(g) and 7(h) of the ESA to expand eligibility for applying for an exemption to include a Federal agency, the Governor of an affected State, or a permit/license applicant. It also adds new grounds for exemption if a reasonable and prudent alternative would impair national security or result in significant adverse national or regional economic impacts.
This significantly broadens the scope and accessibility of the ESA exemption process, allowing more entities to seek exemptions and introducing national security and economic impact as explicit considerations, potentially leading to more exemptions for federal actions.
Deletions
This provision in v1 made a conforming amendment to Section 7(n) of the ESA, striking "section 3(13)" and inserting "section 3(14)" to account for paragraph renumbering.
The deletion indicates that the specific renumbering or the need for this particular conforming amendment changed in v2's overall restructuring, though the general intent of updating cross-references likely remains.
v1 proposed to rewrite Section 4(b)(3)(C) to limit judicial review to only negative findings described in subparagraph (A) and findings described in subparagraph (B)(i)(I).
The deletion of this rewrite in v2 means that the proposed limitation on judicial review for certain findings related to listing petitions is removed, restoring broader judicial review for these determinations compared to what v1 intended.
This section in v1 would have codified 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) to have the force and effect of law.
The deletion means that this specific regulation is no longer proposed for statutory codification, leaving its legal standing to existing regulatory frameworks rather than elevating it to statutory law.
This section in v1 would have amended Section 7(a)(2) to require consultations to consider effects "reasonably certain to be caused by the action without a substantive presumption in favor of the species."
The deletion removes the explicit statutory directive to avoid a "substantive presumption in favor of the species" during consultations, which could alter the baseline approach to environmental reviews under ESA Section 7.
Modifications
This change provides a statutory, rather than regulatory, definition for a key term in listing decisions, potentially offering greater clarity and stability but also making future changes to the definition subject to legislative action.
Before
v1 codified a specific final rule (84 Fed. Reg. 45020; August 27, 2019) to define "foreseeable future."
After
v2 directly amends Section 3(20) of the ESA to define "foreseeable future" as the period within which the Secretary can determine that a factor described in Section 4(a)(1) is likely to occur with respect to the species, based on the best scientific and commercial data available.
This modification restricts the areas that can be designated as critical habitat, potentially limiting conservation efforts to areas within a species' current or historic range, even if other areas could support recovery.
Before
v1 added Section 3(5)(D) defining "habitat" for critical habitat designation as the abiotic and biotic setting supporting life processes, excluding areas visited by only vagrant individuals.
After
v2 modifies Section 3(5)(D) to further exclude areas "outside the current or historic range" of the threatened or endangered species from being designated as critical habitat.
This modification imposes stricter requirements on the quality and application of data used in ESA decisions, potentially influencing how scientific information is evaluated and used, and explicitly prohibiting precautionary assumptions.
Before
v1 defined "best scientific and commercial data available" to include data submitted by State, Tribal, or local governments.
After
v2 provides a much more detailed definition, specifying that the terms mean "all relevant and objective scientific and commercial information available at the time of the agency action," including credible and reliable data, quantitative analyses, and models that "account for known or potential sources or error" and "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."
This change could narrow the scope of the environmental baseline considered in consultations and explicitly accounts for existing Federal impacts that the Secretary cannot alter, potentially streamlining reviews for certain projects.
Before
v1 defined "environmental baseline" for consultations to mean the condition of the species/habitat without the proposed action's consequences, including past, present, and anticipated effects of various actions.
After
v2 modifies the definition to specify "area directly affected by the agency action" and adds a new sub-clause (E) to include "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."
This reduction in authorized funding could impact the resources available for implementing various aspects of the ESA, potentially affecting the pace of listing, recovery, and other conservation activities.
Before
v1 proposed appropriations for fiscal years 2026-2031, including $302,025,000 for paragraph (1) and $116,630,000 for paragraph (2).
After
v2 reduces the proposed appropriations for fiscal years 2026-2031 to $287,978,000 for paragraph (1) and $105,400,000 for paragraph (2), while other amounts remain the same.
This change prioritizes court-ordered actions, potentially delaying or deprioritizing other listing and critical habitat designation efforts that are not under judicial mandate.
Before
v1's national listing work plan included a schedule for "proposed and final determinations regarding listing" and "proposed and final critical habitat designations."
After
v2 narrows the scope of the work plan to only include determinations and designations "required by a court order, court decree, or court-approved settlement agreement."
This change may alter how emergency listing funds are allocated and planned, moving towards a more proactive or speculative budgeting approach for unforeseen species crises.
Before
v1 required budget requests to include amounts for "emergency listings if the Secretary identifies any emergency."
After
v2 requires budget requests to include amounts for "potential future listings of species considered on an emergency basis."
This major modification aims to incentivize private land conservation by streamlining the agreement process, broadening eligible species, and providing regulatory certainty and NEPA exemptions, potentially increasing participation from private landowners.
Before
v1 introduced "Candidate Conservation Agreements with Assurances" (CCAAs) with specific approval criteria and incidental take authorization.
After
v2 replaces CCAAs with "Conservation Benefit Agreements" (CBAs). It introduces a "determination of completeness" step, modifies approval criteria to reference specific CFR sections and a new final rule (89 Fed. Reg. 26070), broadens the definition of "affected species" to include declining species at risk of being candidates, and adds an explicit NEPA exemption for CBA approvals.
This change clarifies that the prohibition on additional mitigation applies specifically to the permittee and is contingent on the conservation plan's implementation, potentially allowing for other mitigation efforts not directly from the permittee or outside the plan's scope.
Before
v1 stated that the Secretary "shall not seek any additional mitigation measures through any other Federal or State or local process."
After
v2 modifies this to "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 from the permittee."
This modification directly removes the consultation requirement for the issuance of these permits, streamlining the process and reducing potential delays associated with interagency consultation.
Before
v1 stated that a permit issued under this subsection "shall be deemed to have been granted an exemption under section 7(h)."
After
v2 states "Section 7(a)(2) does not apply to the issuance by the Secretary of a permit under this subsection."
This change introduces economic considerations into the process of developing protective regulations for threatened species, potentially influencing the stringency or scope of such regulations.
Before
v1 rewrote Section 4(d) on protective regulations without explicitly requiring consideration of economic effects in the issuance of such regulations.
After
v2 adds a new subparagraph (1)(B) to Section 4(d), requiring the Secretary to "consider the conservation and economic effects of such regulation" when issuing protective regulations for threatened species.
This change alters the official publication channel, potentially making the information more accessible online but perhaps less formally documented in the Federal Register.
Before
v1 required the Secretary to "publish such approval or denial in the Federal Register."
After
v2 requires the Secretary to "publish such approval or denial on the website of the applicable department."
This modification introduces more rigorous requirements for impact analysis and public input in critical habitat designations, potentially leading to more exclusions of areas based on economic, national security, or private landowner concerns.
Before
v1 amended Section 4(b)(2) to include "the impact on existing efforts of private landowners to conserve the species," as a designation consideration.
After
v2 significantly expands Section 4(b)(2) by adding a new subparagraph (B) requiring the Secretary to consider for exclusion from critical habitat any area submitted through public comment with credible information regarding meaningful economic impact, national security impact, or impact on private landowner conservation efforts. It also adds requirements for draft and final economic and exclusion analyses in 4(b)(5)(A)(i) and 4(b)(6)(A).
This change enhances transparency by requiring online publication but also protects sensitive species location data, which could balance public access with species protection concerns. The change in department for the agreement is a technical update.
Before
v1 required public availability of data on the Internet, with exceptions for State law and a DoD agreement.
After
v2 modifies the publication location to the "website of the applicable department," clarifies the State exemption process, adds a new subparagraph (C) exempting GPS coordinates or geographically specific species location information, and refers to an agreement with the "Secretary of War" instead of "Secretary of Defense."
This change centralizes the reporting of ESA litigation expenditures under the Council on Environmental Quality, potentially providing a more unified and cross-agency perspective on these costs.
Before
v1 assigned responsibility for disclosure of expenditures to the Secretary of the Interior (in consultation with the Secretary of Commerce).
After
v2 assigns this responsibility to the Chair of the Council on Environmental Quality (in consultation with the Secretaries of Interior and Commerce).
This major modification significantly limits who can receive litigation cost awards and the amount they can receive, potentially reducing the financial incentive for certain parties to bring lawsuits under the ESA.
Before
v1 limited fee awards to prevailing parties in accordance with existing law (28 U.S.C. 2412 and 5 U.S.C. 504).
After
v2 completely rewrites Section 11(g)(4), establishing new criteria for an "eligible party" (net worth limits, employee limits, and a frequency limit on seeking fees) and capping attorney and expert witness fees at $125 per hour (with exceptions) and $200,000 total per suit.
This change mandates greater collaboration with State, local, and Tribal governments in assessing the impacts of listing determinations, potentially leading to more comprehensive and locally informed analyses.
Before
v1 added Section 4(a)(4) requiring an analysis of economic, national security, human health/safety, and other relevant effects concurrently with listing determinations.
After
v2 renumbers this to 4(a)(5) and adds a new subparagraph (B) requiring the analysis to be prepared "in coordination with the States, local governments, and Tribes impacted by the determination."
This modification aims to limit the scope of reasonable and prudent measures by explicitly prohibiting mitigation or offset requirements and by allowing for alternative ways to quantify incidental take, potentially reducing the burden on federal agencies and applicants.
Before
v1 modified 7(b)(4) to state that reasonable and prudent measures should not "propose, recommend, or require the Federal agency or the applicant concerned, if any, to mitigate or offset such impact."
After
v2 substantially rewrites 7(b)(4), removing clauses (C) and (iii) from v1's proposed structure. It further clarifies that incidental taking can be expressed "through the use of a substitute used to represent a listed species, habitat, or an ecological function" and retains the prohibition on requiring mitigation or offset.
This change streamlines successive consultations by removing a potentially complex and speculative projection requirement, focusing instead solely on the material impact of continued measures on recovery.
Before
v1 added Section 7(b)(5) requiring the Secretary, in successive consultations after 10 years, to project the likelihood and timeline for recovery and determine if continued implementation of alternatives/measures would materially increase recovery.
After
v2 modifies 7(b)(5)(A) to remove the requirement to "project the likelihood of and timeline for the recovery" of the species, retaining only the determination of whether continued implementation will materially increase likelihood/reduce time for recovery.
This major modification aims to narrow the basis for jeopardy determinations by imposing stricter evidentiary standards for causation and certainty of effects, and by explicitly including beneficial measures, potentially reducing the frequency of jeopardy findings.
Before
v1 added Section 7(a)(5) defining when the Secretary may determine jeopardy, based on effects "likely to result in the action itself causing such jeopardy."
After
v2 renumbers this to Section 503 and introduces a significantly more detailed Section 7(a)(5). This new text defines "effect of the action," specifies that the Secretary may only consider effects "caused by the action itself and are reasonably certain to occur" based on "clear and substantial information," and outlines criteria for determining causation and certainty, explicitly prohibiting consideration of effects without such information. It also mandates considering beneficial effects of avoidance/minimization/mitigation measures.
This change restricts the types of non-native species that can be lawfully exported or imported under this provision to those specifically listed in CITES Appendices I or II, potentially affecting trade in other non-native species.
Before
v1 stated that export/import of non-native threatened/endangered species is lawful if CITES and other ESA subsections are satisfied.
After
v2 modifies this to add a requirement that the non-native species must be "listed in Appendix I or II of the Convention."
This modification provides clear, statutory criteria for issuing permits for non-native species, reducing ambiguity and potentially standardizing permit decisions based on a more explicit set of conservation considerations.
Before
v1 allowed permits for acts otherwise prohibited for non-native species if the Secretary determines the act is "not detrimental to the survival of the affected species."
After
v2 modifies this by adding a new subparagraph (C) that explicitly defines "is not detrimental to the survival of the species." This definition includes criteria such as not having a negative effect on the species in the wild, not causing loss of critical habitat, not interfering with recovery efforts, or being an activity described in 50 CFR 17.21(g)(1) that satisfies registration conditions.
Scope
Complete substitute — Changes are scattered throughout all titles and sections of the bill, affecting definitions, listing processes, private land conservation, transparency, permitting, and exemptions. — v2 represents a meaningful change in policy direction, shifting towards greater emphasis on economic considerations, state/local/tribal input, and streamlining processes, while also introducing new oversight and judicial review mechanisms. The renaming of the Act itself signifies a directional shift. — The changes interact extensively with existing provisions of the Endangered Species Act of 1973, modifying core definitions, procedural requirements for listing and consultation, and the framework for private land conservation and litigation. The renaming of the Act affects all future references.
Impact analysis
Federal Agencies (Secretary of Interior, Commerce, FWS)
Procedural changes and increased oversight.
New responsibilities for coordinating impact analyses with States/Tribes, new criteria for data use, narrowed scope for listing work plans, new congressional notification requirements, and altered responsibilities for litigation expenditure disclosure.
Private Landowners
Gains (incentives, regulatory certainty, reduced burden).
New "Conservation Benefit Agreements" (CBAs) offer streamlined processes, broader species eligibility, and NEPA exemptions for conservation efforts. Critical habitat designation considerations now explicitly include impacts on private landowner efforts.
State, Tribal, and Local Governments
Gains (increased influence, participation, new procedural rights).
Their data is explicitly required to be considered in listing and critical habitat decisions. They are required to be coordinated with for impact analyses. Governors can apply for exemptions.
Project Applicants (Federal and Private)
Gains (streamlined process, reduced burden, new exemption opportunities).
Potential for narrower "action area" definitions, new economic feasibility criteria for reasonable and prudent alternatives, and expanded grounds for seeking exemptions based on national security or economic impacts.
Environmental Advocacy Groups / Litigants
Losses (financial disincentives for litigation), procedural changes (new review avenue).
Litigation cost awards are significantly restricted with caps and eligibility criteria. Judicial review of certain listing findings is restored (compared to v1's proposed limitation). New specific judicial review for biological opinions is created.
Species Conservation Efforts
Mixed (potential for streamlined recovery efforts, but narrowed scope for critical habitat and deprioritization of non-court-ordered listings).
The national listing work plan prioritizes court-ordered actions, potentially delaying other listings. Critical habitat designation is narrowed. New delisting criteria are established. The Act is renamed to emphasize "recovery."