On December 12, 2024, the U.S. Fish and Wildlife Service (USFWS) proposed listing the monarch butterfly as threatened under the Endangered Species Act (ESA). This proposal includes a 4(d) rule offering species-specific protections and flexibilities to encourage conservation and designating critical habitat for the western migratory monarch population in California.
Listing under the ESA prohibits the “take” of an endangered or threatened species. “Take” is broadly defined to include both the direct harm to a listed species, but also indirect harm that includes the destruction of the species’ habitat.
Importantly, the proposed 4(d) rule for the monarch butterfly listing provides exemptions from the ESA’s broader “take” prohibition that are not included for other listed species. USFWS explained that this is designed to promote conservation efforts without fear of unintentional violation of the ESA. Proposed exemptions include:
- 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 habitat
- Implementation of conservation plans developed by state or federal agencies
- Maintaining or improving monarch overwintering habitat in the United States when following an approved management plan
- Vehicle strikes
- Non-lethal collection, possession, captive-rearing, and release of 250 or fewer monarchs per year
- Non-lethal scientific research and educational activities involving 250 or fewer monarchs per year
- Possession of dead monarchs
- Sale of 250 or fewer captive-reared monarchs
For most, the largest impact of this proposed rule will likely be to prevent the habitat destruction for monarch butterflies. However, the exact type of monarch butterfly habitat destruction that USFWS will prohibit under the ESA is still unknown. USFWS might protect grassy areas with substantial milkweed populations, but USFWS has not clearly explained what it considers important monarch habitat that will be protected. Functionally, this could prevent the conversion of native grasslands and shrublands, but it could also have more wide-ranging impacts if the monarch habitat is interpreted broadly.
The USFWS is seeking public comment on the proposal until March 12, 2025. If you have any questions about this proposed rule, please contact Nat Morse, Kristin Watt, or your Vorys lawyer.