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Listing under the Endangered Species Act (ESA)

How Species Are Listed | 5-Year Reviews | Policies & Guidance | Listed Species

5 Factors

A species must be listed under the Endangered Species Act (ESA) if it is threatened or endangered due to any of the following 5 factors:

1. 1. present or threatened destruction, modification, or curtailment of its habitat or range;
   2. over-utilization of the species for commercial, recreational, scientific, or educational purposes;
   3. disease or predation;
   4. inadequacy of existing regulatory mechanisms; and
   5. other natural or manmade factors affecting its continued existence.

The ESA requires that listing determinations be based solely on the best scientific and commercial information available; economic impacts are not considered in making species listing determinations and are prohibited under the ESA.

How Species Are Listed: The Process

There are essentially 2 ways marine species can be listed under the ESA:

1. We may initiate a status review of a species
2. Any person or organization may petition us to list a species as "threatened" or "endangered", reclassify a species, or revise critical habitat. Please see this Public Advisory: Information to Consider When Submitting a Petition under the Endangered Species Act [pdf] for more information about submitting a petition, corresponding to the recent ESA petition regulations revision. 

When we are petitioned to list a species, we analyze the requested action as follows: (The following steps address the listing process, though reclassifications and revisions of critical habitat follow a similar process):

90-day Finding: Candidates for listing
If the petition

• does not present substantial information, NMFS will publish a negative 90-day finding denying the petition in a Federal Register notice.
• does present substantial information, NMFS publishes a positive 90-day finding in the Federal Register, considers the species a Candidate for listing under the ESA, and conducts a status review of the species.

12-month finding: Proposed for listing
If, after reviewing the best available scientific and commercial information and considering ongoing conservation efforts, we determine that the listing--

• is not warranted, we publish a negative 12-month finding in the Federal Register, stating that listing is not warranted.
• is warranted, we publish a 12-month finding in the Federal Register (a "proposed rule") within one year of the date of the petition, proposing to list the species as threatened or endangered.
  • Comments are solicited from the public, and one or more public hearings may be held.

Final listing
After publishing a proposed rule, NMFS considers the public comments received and any new information that may have become available, to make a final determination on whether to list the species. This final determination is also published in the Federal Register.

What Species are Candidates? Proposed? Listed?

Species in the various stages of the listing process can be found on our website:

• petitioned species awaiting 90-day findings
  • previously petitioned species with negative 90-day findings (denied petitions)
• candidate species for ESA-listing
  • species for which we have completed a status review and have determined that listing is not warranted at this time ("Not Warranted" 12-month findings) can also be found on our website.
• species proposed for ESA-listing
• species currently listed under the ESA

Protections under the ESA

Critical Habitat

When listing a species as threatened or endangered, we also designate critical habitat for the species. This designation occurs about 1 year after the final listing, as long as it is prudent to do so and critical habitat is determinable. Unlike the listing determination, economic impacts must be considered when designating critical habitat. Critical habitat is:

• specific areas within the geographical area occupied by the species at the time of listing, if they contain physical or biological features essential to conservation, and those features may require special management considerations or protection
• specific areas outside the geographical area occupied by the species if we determine that the area itself is essential for conservation

"Take" Prohibitions

"Take" of a threatened or endangered species means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Depending if the species is endangered or threatened, different take prohibitions may apply:

When a species is listed as endangered

• "take" prohibitions are automatically extended to it (under ESA Section 9)

When a species is listed as threatened, 

• we must issue protective regulations in order to extend any "take" prohibitions to the species (under ESA Section 4(d))

More Information

• Text of the ESA
• Petitioned Species Awaiting 90-day Findings
• Species Being Considered For Listing under the ESA ("Candidate Species")
• Species Proposed for ESA Listing
• Species Already Listed Under the ESA

Updated: September 26, 2016