/>iOn December 12, the US Fish and Wildlife Service (FWS) issued a proposed rule to list the monarch butterfly as a threatened species under the Endangered Species Act of 1973 (ESA). Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Monarch Butterfly and Designation of Critical Habitat, 89 Fed. Reg. 100662, et seq. The proposed rule, if it becomes final, could have significant impacts on agriculture in the United States.
Describing the monarch butterfly as “one of the nation’s most beloved species,” and citing alleged migratory declines of 80-95% since the 1980s, the proposed rule proposes protective regulations that would apply to the monarch butterfly and also proposes to designate approximately 4,395 acres in seven California coastal counties, known as key overwintering sites for the monarch, as critical habitat for the species. FWS is seeking comments on the proposed rule by March 12, 2025.
FWS’s Authority for the Proposed Rule
Section 3 of the ESA defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.
While FWS did not find that the monarch butterfly was endangered, FWS’s proposed rule determined that it meets the definition of a “threatened species” due to the following threats, among others: (1) the loss of milkweed, critical to monarch reproduction and survival, resulting from herbicide usage for weed control on agricultural lands, (2) logging at overwintering sites in Mexico, (3) urban development, including incompatible management of overwintering sites in California, (4) exposure to insecticides targeted to other species, and (5) climate change.
Takings of Listed Species Are Prohibited Unless Specifically Exempted
When a species is listed as either threatened or endangered under the ESA, FWS issues protective regulations deemed necessary to conserve the species, including to prohibit a “taking” (i.e., to collect, kill, or otherwise harm the species) except under limited circumstances. The protective regulations in the proposed rule make the following activities unlawful with respect to monarchs: “importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.” 89 Fed. Reg. at 100,684. With respect to takings, the proposed rule states that vehicle strikes of the monarch, non-lethal collection and release, and maintenance or improvement of overwintering habitats are not prohibited activities, but does not appear to exempt activities in industries like timber, mining, and wind turbines.
Potential Impacts on Agriculture
FWS found in its proposed rule that loss of milkweed from routine agricultural activities on lands already in use for agricultural production is inconsequential in the conservation of the monarch. Thus, routine agricultural activities would not be prohibited under the proposed rule despite that there may be a de minimis removal of milkweed and nectar resources that monarchs rely on. The proposed rule expressly excluded from this determination the future conversion of native or naturalized grassland, shrubland, and forested habitats.
The proposed rule also “recognize[s] that certain types of pesticide use can have direct or indirect negative effects on monarchs, including aerial broadcast application of insecticides, use of herbicides that remove milkweeds, and use of some biopesticides.” 89 Fed. Reg. at 100,687. As a result, FWS seeks public comment on (1) which pesticide uses and application methods result in exposure and adverse effects to monarchs, (2) whether takings from those uses should be excepted, and (3) whether the exceptions for those uses should be accompanied by measures to mitigate the effects of pesticides on the species.
The proposed rule indicates that for excepted uses and application methods, it will consider mitigation and do so in alignment with the US Environmental Protection Agency’s (EPA) recent Herbicide Strategy and draft Insecticide Strategy, frameworks designed to address EPA’s ESA obligations before registering a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The proposed rule seeks comments on this possible alignment.
Notably, even though the proposed rule is not final, it has immediate impacts for the monarch and the proposed critical habitat in California. The ESA requires federal agencies to consult with FWS or the National Marine Fisheries Service when a proposed action may affect listed species or critical habitat. Section 7(a)(4) of the ESA extends this consultation requirement to any agency action which is likely to jeopardize the continued existence of any species proposed to be listed or result in the destruction or adverse modification of proposed critical habitat. Thus, for example, agencies considering activities like timber, mining, and construction, among many others, within the proposed critical habitat may have to engage in the consultation process even while the proposed rule is pending.
Topics for Public Comments
The ESA requires that determinations of threatened or endangered species status be made solely on the basis of the best scientific and commercial data available. In addition to the topics noted above regarding pesticide use and application and alignment with EPA’s efforts under FIFRA like the Herbicide and Insecticide strategies, the proposed rule seeks data on issues such as current and historical monarch population levels and trends (it is well known that the monarch has been subject to significant population fluctuations over the years), threats not addressed in the proposed rule that the species and its critical habitat may be facing, and additional mitigation or conservation factors that FWS should consider. According to the proposed rule, after reviewing comments and any additional information, FWS could conclude that the monarch is endangered instead of threatened or could conclude that it does not warrant listing as either a threatened or endangered species.
Clear from the foregoing is that the proposed rule has potentially far-reaching impacts on many stakeholders in the agricultural community — e.g., growers, applicators, and manufacturers — and the submission of comments in response to the proposal merits careful consideration.
The Trump Administration moves in approximately halfway through the comment period for the proposed rule.
