How Species are Listed and Protected Under the Endangered Species Act

NCWF often highlights wildlife species featured on the state’s Species of Greatest Conservation Need (SGCN) list, including species classified as endangered or threatened. These species need conservation efforts and funding to recover. They can be listed at the state level, federal level, or both.

The process of listing a species is complex and has multiple phases of evaluation, and can take two or more years to complete.

In this post, we will look at the state and federal processes in place to determine the regulated status of wildlife species. But before we get there, let’s check out the overall purpose of listing a species. Why list a species in the first place?

Why List A Species?

A variety of factors are considered when determining if a species requires protections or regulations to ensure its conservation. A species may be considered for listing if it faces threats from habitat destruction, overutilization, disease, predation, or other factors that may lead to immediate or future extinction.

When a species is listed, it is allocated provisions including:

• Protection from adverse effects from Federal activities;
• Restrictions on taking, transporting, or selling a species;
• Authority to develop and carry out recovery plans;
• Authority to purchase important habitat;
• And Federal aid to State and Commonwealth wildlife agencies that have cooperative agreements with the US Fish and Wildlife Service (USFWS). 

But species are not listed and afforded protections on a whim, and the listing process looks quite different depending on whether a species has been proposed as needing protections through federal listing or state listing.

Let’s take a look at both of these processes.

Federally Listed Wildlife Species

Within the federal Endangered Species Act (ESA), a species may be classified as Threatened (T) or Endangered (E). 

According to the ESA, a species may be:

Federally Listed as Threatened:

A species that is likely to become endangered in the foreseeable future throughout all or a significant portion of its range.

Federally Listed as Endangered:

A species that is in danger of extinction throughout all or a significant portion of its range.

To be listed as a federally endangered species under the ESA, and to receive the protections enforced by it, a species must go through the Listing Process.

This Listing Process is initiated in one of two ways:

• Procedure #1: A petition is received from an outside organization or entity to list a species.
• Procedure #2: A self-initiated proposal is prepared by either the USFWS or the National Oceanic and Atmospheric Administration (NOAA).

Procedure #1 – Petition

A petition to list a species as endangered or threatened may be submitted to the USFWS or, in the case of marine species, NOAA for review. Upon receiving the petition, the agency undergoes a 90-day review period, in which they determine whether the species proposal has “substantial information” for further listing consideration.

At the end of this review period, a petition is determined to be in one of two categories:

1. A “negative 90-day finding” – where the species is disqualified from consideration, usually due to not enough information presented in the petition, or the threats are not deemed substantial to the species, or
   
2. A positive “substantial information” finding- where the species is moved along to the next phase of the process. 

In either case, the decision is published in the Federal Register to notify the public.

A species that receives a “substantial information” finding is moved along to the “status review” phase, where it is considered for federal listing. This status review period lasts 12 months. During this period, the public may submit relevant scientific information about the species. This is when the USFWS develops a Species Status Assessment to inform the listing decision.

At the end of this 12-month period, the species may again receive one of two findings: 

1. A “warranted” finding – where it moves on in the process and is listed, or
2. A “not warranted” finding – where it is disqualified from consideration.
   

NOTE: If there are higher priority actions, the species becomes a “warranted but precluded” candidate (essentially joining a candidate “waiting list”, where candidates are assessed by highest priority in the listing process). 

While on the candidate list, the species must undergo annual Candidate Notice of Reviews that are published in the Federal Register, until such time the species becomes listed or is reconsidered as “not warranted.”.

In either case, the 12-month finding is published in the Federal Register to notify the public of the finding and potential listing status.

Procedure #2 – Self-Initiated Proposal

Through a self-initiated proposal, the USFWS or NOAA develops a proposal for a species status classification (whether for listing, delisting, or uplisting/downlisting). 

The self-initiated proposal process is similar to the outside petition process in the steps that must be followed. One of the key differences is that the USFWS and NOAA are not bound by statutory deadlines (such as the 90-day and 12-month review periods).

State Listings, Wildlife Action Plans, and Species of Greatest Conservation Need

The state listing process has implications for the state’s management of the species, and the state Wildlife Action Plan (WAP) and the Species of Greatest Conservation Need (SGCN) list contained within the WAP.

North Carolina State Listing Procedure

To be listed as a state endangered species, species must meet the requirements of each state’s listing process as contained in their State Endangered Species Act (which is different from – yet informed by – the Federal Endangered Species Act).

In North Carolina, state listed species must be recognized as needing additional conservation attention by the North Carolina Wildlife Resources Commission (NCWRC) in accordance with the State Endangered Species Act (G.S. 113-331 to 113-337). According to the North Carolina Wildlife Action Plan, a species may be listed as:

• State Endangered:

Any native or once-native species of wild animal whose continued existence as a viable component of the State’s fauna is determined by the NCWRC to be in jeopardy or any wild animal determined to be an “endangered species” pursuant to the Federal Endangered Species Act.

NOTE: All native or resident wild animals within the state of North Carolina that are designated as endangered or threatened at the federal level are included on the state protected species list at the same status.

• State Threatened:

Any native or once-native species of wild animal that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range or one that is designated as a threatened species pursuant to the Federal Endangered Species Act.

• State Special Concern:

Any species of wild animal native or once native to North Carolina that is determined by the NCWRC to require monitoring but that may be taken under regulations adopted under the provisions of the State Endangered Species Act.

State listing proposals are addressed by the NCWRC and the NC Nongame Wildlife Advisory Committee (NWAC), an advisory committee to the NCWRC. 

The NWAC assesses species status reports from the state’s Scientific Councils and determines the species’ candidacy for listing. Upon review, the NWAC may recommend to the NCWRC that a species be added, removed, or uplisted/downlisted on the State Protected Species list.

The NWAC established Scientific Councils for each taxonomic group: Fish, Crustaceans, Birds, Mammals, Mollusks, Reptiles and Amphibians. The Scientific Councils identify species to be considered for protection under the State Endangered Species Act and present these as petitions to the NWAC. The conservation status of petitioned species are evaluated by NCWRC biologists with a detailed procedure based on quantitative information gathered for each species. The results are presented to NWAC, and based on these results, the NWAC will recommend species status changes to the NCWRC. The NCWRC considers the recommendations of the NWAC but does not have to take the recommended action.

If the NCWRC accepts the proposal, in accordance with the State Endangered Species Act, the NCWRC will examine collected scientific and economic data to determine:

NOTE: these aspects are considered within the context of the quantitative evaluation, before the NCWRC commissioners receive the recommendation of the NWAC

• Whether any other state or federal agency or private entity is taking steps to protect the wild animal which is the subject of the proposal;
• Whether there is present or threatened destruction, modification, or curtailment of its habitat;
• If there is over‑utilization for commercial, recreational, scientific, or educational purposes;
• Whether there is critical population depletion from disease, predation, or other mortality factors;
• Whether alternative regulatory mechanisms exist; and
• If there is the existence of other man‑made factors affecting the continued viability of the animal in North Carolina. 

Upon determining the species’ candidacy, the NCWRC, with the recommendation of the NWAC, determines whether any regulatory action is needed on behalf of the species. However, NWAC recommendations do not have to be followed. 

Depending on the verdict by the NCWRC, the species’ listing status is published in the North Carolina Register to notify the public of any developments.

If the proposal is accepted and the species is listed, NCWRC implements regulatory action in accordance with the Administrative Procedure Act, as stated in the State Endangered Species Act. Conservation plans are developed by NCWRC for listed species to outline conservation measures needed to address threats contributing to their decline and actions that will help sustain existing populations. 

State Wildlife Grants Program and Wildlife Action Plans 

State wildlife agencies use federal funds generated by excise taxes provided by the Wildlife Restoration Act (Pittman–Robertson), Sport Fisheries Restoration Act (Dingell–Johnson), and the Wallop–Breaux Act to support the conservation and management of game fish and wildlife species. The State Wildlife Grants (SWG) program was established by the US Congress in 2002 to provide annual funding for nongame species not traditionally covered under most previous federal funding programs. The USFWS has oversight of the SWG program and gives states the authority to determine how they identify these priority species.

To qualify for SWG funds, each state is required to develop a comprehensive wildlife conservation plan, more commonly known as a state Wildlife Action Plan (WAP or Plan). Each Plan must address eight required elements and, at a minimum, be revised at 10-year intervals. North Carolina’s first WAP was published in 2005 and the NCWRC has published subsequent revisions, including the first 10-year required revision (2015), Addendum 1 (2020), and Addendum 2 (2022). NCWRC is currently working on the second 10-year required revision which is due for completion in late 2025. 

Species of Greatest Conservation Need (SGCN)

The use of SWG funds is limited to species identified in the Plans as having the greatest need for conservation, also referred to as SGCN. In North Carolina, SGCN have been defined as species that are currently rare or have been designated as at-risk of extinction; those for which we have knowledge deficiencies; and those that have not received adequate conservation attention in the past. In addition, SGCN may also include those species for which we are unable to determine true status in the state, making them a priority for research due to knowledge gaps.

Other species that are not identified as SGCN but that may be vulnerable to local threats; species of recreational, commercial, or tribal importance that are vulnerable; and those identified as having high management needs or for which there are management concerns are considered priority species in the WAP. Work related to priority species may be funded from sources other than the SWG program; however, eligibility for SWG funds is restricted to SGCN. 

The SGCN list is developed through a scientific review process that measures current understanding about the status, trends, and risks of species in the state. The evaluation process is completed by teams of taxonomic and species experts from NCWRC, numerous federal and state agencies and partner organizations, and goes through a public peer-reviewed process. The evaluations are completed for amphibian, bird, crayfish, freshwater fish, freshwater mussel, mammal, reptile, and snail taxa groups found in North Carolina. Other taxa groups, such as insects, are considered by recommendations from species and research experts.

Listed Species and Recovering America’s Wildlife Act

NCWF has long been a supporter of Recovering America’s Wildlife Act (RAWA), a bill that would prove invaluable to imperiled North Carolina wildlife species facing declines and potential extinction. If passed by Congress, RAWA would allocate more than $1.397 billion dollars towards on-the-ground conservation efforts across the country, with an estimated $20-$25 million annually for the NCWRC, which would work with partners to help the nearly 500 identified nongame fish and wildlife species of greatest conservation need in North Carolina. This is extremely important because it is ecologically and economically beneficial to keep species from being listed in the first place through proactive conservation, management, and monitoring. 

For two years in a row, Congress has narrowly failed to pass RAWA, which means that all 50 states were left to face drastic underfunding of local and state efforts to protect and conserve threatened wildlife and habitat. However, sights are set for the re-introduction of an updated version of the bill, spearheaded by Senator Thom Tillis (NC) and Senator Martin Heinrich (NM). 

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