FREE CONSULTATION • CALL US 24 / 7 212-994-7777

Endangered Species Act (ESA)

What is the Endangered Species Act?

The Endangered Species Act (ESA) was enacted in 1973. Its goals are to protect plants and animals listed by the federal government as "endangered" or "threatened." An endangered species is one that is in danger of extinction. A threatened species is one likely to become an endangered species. There are two central sections:

  • Section 7 – Federal agencies have the duty to ensure that their actions (including issuing permits for private activities) are not likely to endanger the existence
    of a listed species or result in the destruction or modification of habitat.
  • Section 9 – It is illegal for anyone to "take" a listed animal or to significantly modify its habitat. This law also applies to private parties and private land. Landowners may not harm endangered animals or their habitats on their property.

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Services (NMFS) enforce the ESA.

Why is the ESA Important?

The ESA is important because it has a lot of potential to affect private property interests. There are several things that the ESA does, including:

  • Listing – To get federal protection, a species must be added to the official list of endangered and threatened species. Someone may petition the government to list the species. The decision is based on scientific information, and the process should take no more than 27 months.
  • Critical Habitat – The designation of critical habitat is required. A critical habitat is an area that is essential to the conservation of the species (even those areas that are not currently occupied by the species). It is a habitat necessary for the recovery of the species.
  • Recovery Planning – Recovery plans are created to reverse the decline of a species and nurse back the population.
  • Agency Actions – The ESA provides for review of federal agency actions.
  • Habitat Conservation Plans – Habitat Conservation Plans are exemptions for the timber industry, real estate developers, and others. Non-federal landowners can apply for exemptions (or "Incidental Take Permits"). To receive one, they must develop a Habitat Conservation Plan to moderate their impact.

How Can I Request to List a Species as Endangered or Threatened?

The process of requesting to list a species as threatened or endangered is as follows:

  • Petition FWS or NMFS – Petitions are formal requests to list a species and require published findings
  • Service Review (90 days) – FWS or NMFS must make a finding within 90 days as to whether or not there is "substantial information" showing that a listing may be warranted
  • Review and Information Gathering (12 month status review) – Within one year of the petition, FWS or NMFS determines whether the listing is or is not warranted. The fate of the petition depends on the findings:
    • "Not warranted" – Species is not listed
    • "Warranted but precluded" – Subsequent one-year findings are required
    • "Listing is warranted" – A proposed rule is published to list in the Federal Register
  • Peer Review – 3 expert opinions of species specialists are solicited. Input from the public, the scientific community, and Federal and State agencies are sought. After this, a decision to list or not is rendered
  • Species Added to List – The final rule is published in the Federal Register and becomes effective 30 days after announcement


The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was created in 1975. It is an international agreement between world governments. It is the goal of CITES to ensure that international trade in wild animals and plants does not threaten their survival. CITES is a voluntary agreement among countries, and is legally binding on the countries that have agreed to be bound by it. Although it does not take the place of national laws, each country must adopt its own legislation to ensure that it is implemented at the national level.


CITES is important because of the scope of international trade. Each year, international wildlife trade is estimated to be worth billions and includes many millions of plant and animal specimens. The trade includes:

  • Timber
  • Live animals and plants
  • Wooden musical instruments
  • Wildlife products derived from animals and plants
  • Food products
  • Exotic leather goods
  • Other items

Some populations have been threatened with depletion and even extinction. CITES regulates the trade in wild animals and plants that crosses borders between countries.


CITES places certain limitations on international trade. For instance, all import, export, re-export, and introduction from the list of species covered by the Convention must be authorized through a licensing system. Based on the degree of protection they need, species are listed in three Appendices:

  • Appendix I (Species threatened with extinction) – Trade is permitted only in exceptional circumstances
  • Appendix II – This includes species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival
  • Appendix III – This includes species protected in at least one country, which has asked other CITES parties for assistance

Each Party to the Convention must appoint Management Authorities to administer the licensing system. They must also assign Scientific Authorities to advise them on the effects of trade on species. For the importation or exportation of CITES-listed species, appropriate documents must be obtained for clearance at ports of entry or exit.

Do I Need a Lawyer Experienced with the Endangered Species Act or CITES?

A government lawyer who has experience with the Endangered Species Act would be able to inform you on how you can take advantage of the ESA to protect a species. A lawyer would also be able to inform you of the specifics of the law and your chances in getting a species listed.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.