ESA Amendments Act of 2025

(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 section 10(k)) of any approved Conservation Benefit Agreement (as that term is defined in such section) relating to the species.

(k) Conservation Benefit Agreements

(1) Proposed Agreement

(A) In general. A covered party may submit a proposed Agreement to the Secretary.

(B) Determination of completeness. Not later than 30 days after the date on which the Secretary receives a proposed Agreement, the Secretary shall—

(i) determine whether the proposed Agreement is complete; and

(ii) if the Secretary determines the proposed Agreement is incomplete under clause (i), provide the covered party with a written explanation of such determination, including any specific adjustment required for the Secretary to determine the proposed Agreement is complete.

(C) Approval; rejection. Not later than 120 days after the date on which the Secretary receives a proposed Agreement that the Secretary determines under subparagraph (B)(i) is complete, the Secretary shall—

(i) approve the proposed Agreement if the Secretary determines that the proposed Agreement—

(I) is in compliance with, as applicable, section 17.22(c)(1) or 17.32(c)(1) of title 50, Code of Federal Regulations (or a successor regulation); and

(II) provides assurances to the covered party that, if the covered species becomes listed after the effective date of such Agreement—

(aa) no additional conservation measures will be required; and

(bb) additional land, water, or resource use restrictions will not be imposed on the covered party;

(ii) reject the proposed Agreement if the Secretary determines that the proposed Agreement does not meet the requirements described in subclauses (I) and (II) of clause (i); and

(iii) if the Secretary rejects the proposed Agreement 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.

(2) Programmatic Conservation Benefit Agreements. The Secretary may enter into a Conservation Benefit Agreement with a covered party that authorizes such covered party—

(A) to administer such Conservation Benefit Agreement;

(B) to hold any permit issued under this section with regard to such Conservation Benefit Agreement;

(C) to enroll other covered parties within the area covered by such Conservation Benefit Agreement in such Conservation Benefit Agreement; and

(D) to convey any permit authorization held by such covered party under clause (ii) to each covered party enrolled under clause (iii).

(3) Take authorization. If a covered species is listed as a threatened species or an endangered species under section 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.

(4) Technical assistance. The Secretary shall, upon the request of a covered party, provide the covered party with technical assistance in developing a proposed Agreement.

(5) Applicability to Federal land. An Agreement may apply with respect to a covered party that conducts activities on land administered by any Federal agency pursuant to a permit or lease issued to the covered party by that Federal agency.

(6) Exemptions

(A) Consultation. Section 7(a)(2) does not apply to the approval by the Secretary of a proposed Agreement under this subsection.

(B) Disclosure. Information submitted by a private party to the Secretary pursuant to this subsection shall be exempt from disclosure under section 552(b)(3)(B) of title 5, United States Code.

(C) National Environmental Policy Act of 1969. The approval by the Secretary of a proposed Agreement under this subsection shall not be considered a major Federal action under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

(7) Definitions. In this subsection:

(A) Affected species. The term affected species means a species—

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

(ii) proposed to be listed pursuant to section 4; or

(iii) that is declining and at risk of being designated by the Secretary as a candidate species under this Act.

(B) Agreement. The term Agreement means—

(i) a Conservation Benefit Agreement; or

(ii) a programmatic Conservation Benefit Agreement.

(C) Conservation Benefit Agreement. The term Conservation Benefit Agreement means the supporting document required for the issuance of a permit under subsection (a)(1)(A) to 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).

(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.

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

(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—

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

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

(iii) the habitat of the covered species.

(G) Programmatic Conservation Benefit Agreement. The term programmatic Conservation Benefit Agreement means a Conservation Benefit Agreement described in paragraph (4).