In a decision with potentially far-reaching consequences, on December 12, 2024, the US Fish and Wildlife Service (USFWS) published a proposed rule to list the monarch butterfly (Danaus plexippus) as threatened under the Endangered Species Act (ESA). The USFWS stated that the listing is needed due to ongoing impacts from loss and degradation of monarch breeding, migratory, and overwinter habitats; incompatible management of overwintering sites in California; drought; exposure to insecticides; and the effects of climate change.
The listing would apply the ESA’s broad “take” prohibition to monarch butterflies, resulting in the regulation of actions and activities that cause direct mortality of monarch butterflies as well as imports, exports, possession, and commercial activities involving the species. Considering the monarch’s extensive geographic presence, the listing has the potential to impact a wide range of industries and activities.
The USFWS’s listing proposal also includes a monarch-specific 4(d) rule, which would except certain actions and activities (e.g., mortality from vehicle strikes, nonlethal collection, and limited sales) from the prohibitions in the ESA under the circumstances described in the rule.
The proposed monarch 4(d) rule also excepts the “incidental take” of monarch butterflies during habitat restoration and management; routine grazing, ranching, and agricultural activities; fire and forest management activities; and vegetation management, including mowing and clearing at times when monarchs likely are not present. However, the 4(d) rule does not apply if these activities “result in conversion of native or naturalized grassland, shrubland, or forested habitats”—which excludes development that removes milkweed or nectar plants even during times when no butterflies are present. In other words, individuals or developers could remove milkweed, a key food source for monarch caterpillars, from their land but would be prohibited from making changes to the land that make it permanently unusable for monarch butterflies.
In response to concerns about loss of monarch overwintering habitats, the USFWS proposed to designate 4,395 acres of critical habitat in seven coastal California counties where monarchs west of the Rocky Mountains migrate for the winter.
The 90-day comment period for the USFWS’s proposal closes on March 12, 2025. Information about how to submit comments can be found on regulations.gov by searching for docket number FWS-R3-ES-2024-0137. The USFWS also plans to hold two virtual public information meetings and associated public hearings about the proposed listing. Following the public information meetings and public comment period, the USWFS will determine whether to officially list the monarch butterfly and, if applicable, finalize the list of excepted activities in the 4(d) rule.
If finalized, the listing will likely have far-reaching impacts on land management and project development nationwide, including the potential need for increased consultation and permitting with the USFWS to comply with the ESA’s broad protections. Project sponsors will have to consider monarch habitat, including meadows, grasslands, and any areas with milkweed or nectar plants suitable for monarchs, when evaluating developable areas.
Barclay Damon’s Environmental Practice Area attorneys will continue to monitor the status of the proposed rule and are available to assist with providing comments.
If you have any questions regarding the content of this alert, please contact Rick Capozza, Outdoor & Wildlife Team co-leader and Energy Team leader, at rcapozza@barclaydamon.com; Mike Oropallo, Outdoor & Wildlife Team co-leader, at moropallo@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area or Outdoor & Wildlife Team.