U.S. Fish and Wildlife Service Proposes to List Monarch Butterflies as a Threatened Species

After years on hold, the U.S. Fish and Wildlife Service (“USFWS”) is moving forward with a proposed rule to list monarch butterflies as threatened under the Endangered Species Act (“ESA”). On Dec. 12, 2024, USFWS published notice of its proposed rule, including a critical habitat designation and protections under ESA Section 4(d). If finalized in its current form, this proposal would grant monarchs protection from “take” and trigger consultation requirements for federal agency permitting.

Monarchs are native to North America. In addition to the iconic orange and black markings, they are known for their long-distance migrations, flying from as far as Canada to overwintering grounds in central Mexico and coastal California. Overwintering monarchs in California can form large clusters of thousands of butterflies. Monarchs rely on native milkweed during their egg and caterpillar stage, and adult monarchs require nectar plants to ensure food in their migratory and breeding habitat.

Conservation organizations initially petitioned the USFWS to list monarchs in 2014. Although determining that listing may be warranted, USFWS failed to make a final listing decision within the 12 months required under the ESA. As a result of the ensuing litigation, USFWS was given until December of 2020 to make a final decision. At that point, USFWS determined that the listing was “warranted but precluded” based on higher priority listing activities. Monarchs have been on the waiting list ever since, until further litigation resulted in a settlement requiring USFWS to make a decision by the end of 2024.

The proposed rule would designate monarchs as threatened—meaning USFWS believes the species is likely to become endangered in all or a significant portion of its range in the foreseeable future—and offer protection to monarchs in the contiguous United States. According to the USFWS, threats to monarchs include loss and degradation of breeding, migratory and overwintering habitat, exposure to insecticides and the effects of climate change.

The proposed rule establishes 4,395 acres of critical habitat at certain overwintering sites in coastal California located in Alameda, Marin, Monterey, San Luis Obispo, Santa Barbara, Santa Cruz and Ventura counties. It also includes a monarch-specific Section 4(d) rule, excepting certain activities from the ESA’s “take” prohibition.

Section 9 of the ESA prohibits “take” of endangered species, which means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” A Section 4(d) rule can extend the take prohibition to species listed as threatened. Currently, USFWS has a blanket Section 4(d) rule that protects any species listed as threatened unless a species-specific regulation provides for exceptions.

As currently proposed, the monarch Section 4(d) rule contains a narrow carve-out for conservation-related activities and those with minimal impacts that do not threaten the overall populations. These exceptions include:

• Activities that may maintain, enhance, remove or establish milkweed and nectar plants within the breeding and migratory range that do not result in the conversion of native or naturalized grassland, shrubland or forested habitats, including:
  • habitat restoration,
  • livestock grazing,
  • routine agricultural activities that use mechanical means,
  • fire management,
  • silviculture practices, and
  • other vegetative management activities;
• Certain conservation activities developed in coordination with state or federal agencies;
• Vehicle strikes; and
• Limited scientific collection and rearing.

Notably, USFWS is seeking specific comments on whether the proposed 4(d) rule should be expanded to include additional exceptions for the use of pesticides for direct impacts from transportation and energy infrastructure, including mortality from collisions with wind turbines. Neither of those activities would be exempted from the take prohibition as currently proposed.

USFWS is holding two virtual public informational meetings followed by public hearings on Jan. 14 and Jan. 15.

USFWS is accepting comments on the proposal through March 12, 2025.

After review of the comments, the USFWS will then make a final decision on whether to list monarchs as threatened and whether any modifications to the proposed critical habitat designation or Section 4(d) rule are appropriate. If USFWS ultimately determines to finalize the listing, monarchs would be protected under the ESA, triggering additional permitting requirements for incidental take by private parties and consultation requirements under Section 7 for federal agencies prior to approving or carrying out projects that might impact monarchs.

If finalized as proposed, the monarch listing would have widespread impacts across multiple industries, including but not limited to renewable energy development, land development, agricultural interests and public entities. If you or your company have plans that may be affected by this decision, Brownstein can assist you in evaluating the possible impact and developing a strategy to respond, including preparation and submission of comments on the proposed rule.

This document is intended to provide you with general information regarding monarch butterflies as a threatened species. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.