On December 12, 2024, the U.S. Fish and Wildlife Service (the “Service”) published notice in the Federal Register of a proposed rule to list the monarch butterfly as a threatened species under the Endangered Species Act (“ESA”). The proposed rule designates proposed critical habitat for the monarch in California and includes an ESA section 4(d) rule. Monarchs are native to North America, and the proposed listing has the potential to complicate ESA compliance across the country for a wide range of industries. The proposed 4(d) rule adopts the same “take” prohibitions that apply to endangered species under ESA section 9 unless otherwise listed within the 4(d) rule “exceptions.” The Service is requesting additional comments regarding the scope of the exceptions listed in the proposed 4(d) rule and whether additional exceptions should be added.
Proposed 4(d) Rule Exceptions:
The proposed 4(d) rule provides for conservation of the monarch by creating narrow exceptions that incentivize conservation efforts and/or may have a minimal level of take. The proposed rule includes exceptions for:
- vehicle strikes;
- limited scientific collection and rearing;
- certain activities intended to conserve the species; and
- 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.
Notably, the Service is seeking comment on whether an exception for pesticide use should be included in the final 4(d) rule.
Request for Comments – Energy:
The proposed rule does not include any specific exceptions for the development or operation of energy facilities or infrastructure. Accordingly, the Service is seeking specific comments on whether a 4(d) exception for impacts from transportation and energy infrastructure, including mortality caused by collisions with wind turbines, should be included in the final rule. The Service is also seeking general comments on whether it should consider any modifications or additional 4(d) exceptions. Given the potentially significant nationwide impact of this proposed listing, stakeholders should plan to provide comprehensive comments on the proposed rule. The Service will accept comments received or postmarked on or before March 12, 2025.
Update to original post: On March 19, 2025, the Service reopened its comment period and will now accept comments until May 19, 2025.