On December 12, 2024, the U.S. Fish and Wildlife Service (FWS) proposed listing the monarch butterfly as a threatened species with a special section 4(d) rule under the Endangered Species Act (ESA). The special 4(d) rule would provide very narrow exemptions to the ESA’s broad prohibition on unauthorized take for certain types of activities that may otherwise impact the species. FWS also proposed designating nearly 4,500 acres in California as critical habitat that would extend from the California Bay Area’s Marin County down the state’s western coast to Ventura County north of Los Angeles.

If finalized as proposed, this listing would stand as the largest listing decision in ESA history, affecting the entire lower forty-eight states. FWS is receiving public comment through March 12, 2025.

Background

FWS’s proposal has been years in the making. On August 26, 2014, FWS received a petition requesting that it list the monarch butterfly as a threatened species under the ESA. At that time, FWS concluded that listing the monarch was warranted, but that other species took higher priority. That decision left the monarch classified as a candidate species, which FWS subsequently was required through litigation to take up again by the end of 2024. This proposal responds to that requirement.

Key Takeaways

FWS’s proposal to list the monarch as threatened has surprised landowners across the country and left many commercial and private conservation partners scratching their heads. These reactions are not surprising for two key reasons. First, species experts have long recognized that monarch population counts fluctuate greatly from year to year. For example, after a reported low of 1,900-2,000 individuals in the western migratory population in winter 2019-2020, FWS admits that the current population is now 100 times greater—over 200,000 individuals—in four short years. Nevertheless, FWS’s proposal concludes that the species is at risk of becoming an endangered species in the foreseeable future.

Second, since the low 2019-2020 population numbers were reported, FWS has urged landowners to enroll enormous swaths of transportation, energy production and transmission, as well as other private corridors in a nationwide candidate conservation agreement with assurances (CCAA) designed to protect monarch butterfly habitat and connectivity for migrating. Since 2020, nearly one million acres have been enrolled, and FWS continues its efforts to expand enrollment to over 26 million acres. While participants would receive ESA incidental take permit authorization for their covered activities on enrolled lands if FWS finalizes the listing decision, most made substantial financial and operational commitments to the CCAA with a realistic hope that such efforts would be more than sufficient to conserve the species and avoid the need for a listing decision. As a result, there is some risk that FWS’s proposal, if finalized, could have a more far-reaching impact, including the willingness of private landowners and commercial stakeholders to engage with FWS in future species conservation initiatives.

Perhaps anticipating this risk, FWS proposes in a special 4(d) rule a suite of narrow and significantly conditioned exemptions to the ESA’s take prohibition for the monarch butterfly. FWS is specifically requesting public feedback on these exemptions, which include the following:

• 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 certain native lands including:
  • Habitat restoration and management activities;
  • Livestock grazing and routine ranching activities;
  • Routine agricultural activities;
  • Fire management actions;
  • Silvicultural practices and forest management;
  • Maintenance, enhancement, removal, and establishment of milkweed and nectar plants on residential and other developed properties; and
  • Vegetation management activities that remove milkweed and/or other nectar plants when conducted at times of year when monarchs are not likely present.
• Activities intended to conserve the species conducted by participants in a comprehensive conservation plan under Section 10 of the ESA.
• Maintenance or improvement of monarch overwintering habitat.
• Vehicle strikes.
• Limited scientific collection, possession, rearing, and releasing purposes.

Equally important, the proposal currently does not include any exemptions for the majority of industries and activities that would bear the brunt of the listing decision. In particular, FWS has not proposed exemptions for any of the following: timber, land development, housing, mining, oil, gas, pesticides, pipelines, transportation, and renewable energy development. However, the Service specifically requests feedback on this issue and suggestions for additional exemptions to propose in the future.

Next Steps

In view of the certain far-reaching, nationwide implications that the monarch listing will have if finalized as proposed, it is crucial for stakeholders to engage actively in this listing process by coordinating with experts to prepare comprehensive, substantive comments for the agency’s administrative record.