DENVER – December 16, 2024
On December 12, 2024, the U.S. Fish and Wildlife Service (FWS) published a rule proposing to list the monarch butterfly as threatened under the Endangered Species Act (ESA), provide protective regulations under section 4(d) of the ESA, and designate critical habitat for the species (the “Proposed Rule”). FWS is accepting comments on the Proposed Rule until March 12, 2025.
FWS identified the monarch butterfly as a candidate for listing in 2020. In response to a federal lawsuit, FWS committed to make a listing decision for the monarch butterfly by September 2024, later extended to December 2024. The Proposed Rule follows.
The vast majority of monarch butterflies in North America are migratory, and the species’ North American range covers approximately 2.8 billion acres. For comparison, the land area of the continental United States land area is roughly 2 billion acres. In eastern North America, some monarchs travel over 2,000 miles between Canada and central Mexico. Monarchs in western North America generally migrate shorter distances, traveling from Canada to Baja California or the California coast.
FWS based its listing proposal on several threats to the species: loss and degradation of breeding, migratory, and overwintering habitat; exposure to insecticides; and effects of climate change.
With respect to habitat loss and degradation, FWS specifically emphasized the conversion of grasslands to agriculture as a key driver for past population declines. While monarchs require habitat with milkweed and nectar plants within their breeding and migratory range, FWS indicated that activities that may remove these plants but that do not result in conversion of grassland, shrubland, or forested habitats are not considered key population drivers. FWS also highlighted the importance of monarchs’ overwintering habitats, where the butterflies cluster in the fall and winter. These overwintering habitats are largely limited to central Mexico, Baja California, and California. FWS cited logging in Mexico and urban development in California as some of the primary stressors in these areas.
Regarding the use of insecticides, FWS recognized that insecticide use is most often associated with agricultural production. FWS noted, however, that any habitat where monarchs are found may be impacted by insecticide use—citing personal use by homeowners and treatment of forests and parks as examples.
Finally, FWS found that climate change may both directly and indirectly impact the species. FWS recognized increased storm frequency and extreme drought as potentially catastrophic events for the monarchs. Additionally, FWS cited changing precipitation patterns and temperatures as potentially detrimental to the specific microclimate that the monarchs require at their overwintering habitats. In addition to these and other direct impacts, FWS also identified the predicted loss of suitable overwintering trees and habitat caused by increased temperatures and rising sea levels as a threat to the species.
What this means for Land Users—The Proposed Listing, 4(d) Prohibitions, and Critical Habitat Designation
FWS proposed to list the monarch butterfly as a threatened species. Section 4(d) of the ESA directs FWS to issue regulations deemed “necessary and advisable to provide for the conservation of [a threatened] species,” and authorizes FWS to prohibit any act that would be prohibited were the species listed as “endangered.” These acts are detailed under section 9(a)(1) of the ESA, and include “take” of the species—which is defined as harming, harassing, and killing the listed wildlife, among other actions. “Take” also includes significant habitat modification or degradation if it kills or injures the wildlife by significantly impairing essential behavioral patterns.
In this case, FWS proposes to use its Section 4(d) authority to prohibit all acts listed in section 9(a)(1), including take of the species, with the following specified exceptions:
- Activities that may maintain, enhance, remove, or establish milkweed and nectar plants within the breeding and migratory range that do not result in conversion of native or naturalized grassland, shrubland, or forested habitats. FWS specifically identifies certain activities as falling within the exception’s scope: livestock grazing and routine ranching activities; routine agricultural activities; fire management activities; maintenance, enhancement, removal or establishment of milkweed and nectar plants on residential and other developed properties; and “vegetation management activities” (including mowing and ground disturbance) that remove milkweed and/or nectar plants when conducted at times of year when monarchs are not likely present;
- Monarch mortality due to vehicle strikes;
- Non-lethal small-scale (less than 250 butterflies) collection; and
- Non-lethal scientific research and educational activities involving a limited number (less than 250) of monarchs.
Notably, there is no proposed exception for mortality from collisions with wind turbines. FWS has requested comments addressing whether an exception for such collisions, as well as other “direct impacts from transportation and energy infrastructure” should be included.
To engage in land use activities that will result in prohibited incidental take of protected wildlife on private lands, land users must obtain a permit from FWS. To obtain a permit, the land user must have entered into a candidate conservation agreement with assurances (CCAA) with FWS prior to listing, or must develop an approved habitat conservation plan. FWS has approved a nationwide CCAA for the monarch butterfly that is specific to energy and transportation rights-of-way lands and covers the continental United States.
In addition to listing the monarch butterfly as threatened, FWS has proposed to designate critical habitat for the monarch butterfly under the ESA. Critical habitat designations do not affect activities by private landowners when there is no federal permit or federal funding involved in the activity. Rather, federal agencies are prohibited from destroying or adversely modifying designated critical habitat. The proposed critical habitat designation for the monarch butterfly is limited to the monarchs’ overwintering habitat along the California coast. In total, approximately 4,395 acres in Alameda, Marin, Monterey, San Luis Obispo, Santa Barbara, Santa Cruz, and Ventura Counties, California, fall within the boundaries of the proposed critical habitat designation.
Finally, the ESA requires federal agencies to consult with FWS to ensure their actions do not jeopardize the continued existence of endangered or threatened species, in a process known as “section 7 consultation.” Section 7 consultation can lead to delay and additional conservation measures for any project that is on federal land, requires a federal permit, or is funded by federal agencies. Federal actions that do not affect listed species or critical habitat do not require section 7 consultation.
Public Participation and Next Steps
FWS is accepting public comment on the Proposed Rule until March 12, 2025. As noted, FWS has specifically requested comments addressing “[w]hether [FWS] should include an exception for direct impacts from transportation and energy infrastructure, including mortality from collisions with wind turbines.” FWS will also hold two public meetings followed by public hearings, to take place remotely on January 14, 2025 from 4:00 p.m. to 6:30 p.m. (mountain time), and January 15, 2025 from 6:00 p.m. to 8:30 p.m. (mountain time).
The ESA requires that FWS issue a final listing rule or withdraw the proposed rule within one year of publication of the proposed rule (i.e., by December 12, 2025). The ESA allows FWS to extend this deadline by six months if there is substantial disagreement regarding the sufficiency or accuracy of available data relevant to the proposed listing rule. To withdraw a proposed rule, FWS must make a finding, subject to judicial review, that there is not sufficient evidence to justify the proposed action.
Written by Kathleen Schroder and Stephen Snow. Please contact Katie Schroder with questions about the proposed listing rule or its effect.