USFWS Proposed Rule: Thoughts and Implications

We have been receiving questions about our thoughts related to the U.S. Fish and Wildlife Service (USFWS) proposed rule to list the monarch butterfly as threatened 4(d) under the Endangered Species Act, as well as what the implications are for Monarch Watch programs. We provide our responses to both questions below, as well as an overview of the listing process and proposed rule.

Thoughts about the Proposed Rule
One topic we have been thinking about is the limit of 250 or fewer butterflies placed on scientific research and educational activities. Monarch Watch has several programs to support our education, conservation, and research mission that mean we currently go above that limit, and that would likely apply to other organizations and individuals as well. For example, we have supported a community-science tagging program since 1992, and some of our taggers regularly tag more than 250 monarchs per year, including some organizations and groups that host tagging events. We also provide educational resources and programs that emphasize the monarch life cycle through the inclusion of monarchs in classrooms and other educational settings, and at in-person events. The research programs of individual researchers, including my own, would also typically exceed that limit, especially if the research requires maintaining a colony of monarchs. At the public hearings on Jan. 14 and 15, the USFWS emphasized that it is possible these activities could continue, but a permit would be needed. An alternative approach to permits would be to increase the number of monarchs included in the exemption for specific activities or to completely exempt certain activities. These alternative approaches would be more likely to ensure these activities continue without additional regulatory constraints.

Another consideration is the section about vegetation-management activities when monarchs are not present. This section of the proposed rule presumably applies to activities not already provided with an exemption. Exemptions are included for “habitat restoration and management activities, livestock grazing and routine ranching activities, routine agricultural activities and conservation practices, fire management, silviculture and forest management, [and] management of habitat on residential and other developed properties.” This section of the proposal might influence milkweed and nectar plant recommendations for settings where management of milkweed and nectar plants may be needed during the growing season when monarchs are likely present. Some of our favorite nectar plants can be on the weedy side and require some work to keep them in their place in garden settings. Many of our milkweed species, including common milkweed, spread via underground rhizomes, so we often recommend planting them in locations where one can limit spread beyond the intended location, especially in urban areas, such as by mowing around the perimeter of the milkweed’s designated planting area.

It is also important to think about what is included or could be included in the proposed 4(d) rule that will make a positive difference by adding more to monarch-conservation efforts than what is already being done.

For example, our Monarch Waystation Program is approaching 50,000 registered habitats after almost 20 years. We also distributed 100,000 free milkweed plants last year. However, we are still losing more monarch habitat each year than we are gaining through these efforts and others. We need to register 50,000 Monarch Waystations every year (or every few months!) instead of every 20 years, and we need to distribute 1 million or more milkweed plants each year. [For anyone who is interested, we are currently accepting applications for our two free milkweed programs, including one program for schools and educational non-profits and another for restoration sites.] We need to figure out how to do more.

We also need to figure out how to get more people involved in monarch-conservation efforts. There are many people dedicated to this mission already, from creating habitat, to participating in community science projects, to raising awareness about monarch-conservation concerns with friends and family. The exciting thing about monarchs is there is something that everyone can do to help them; we just need to figure out how to get everyone involved.

Implications of the Proposed Rule for Monarch Watch Programs
None of the actions included in the proposed rule will take effect until after the USFWS decides whether to list the monarch butterfly. The 90-day comment period is open until March 12, 2025, after which the USFWS will evaluate the comments received and any other relevant new information. The final rule will be posted within a year (by December 12, 2025), and rules typically become effective 30 days after posting. That means that there are no implications for Monarch Watch programs at the present time. However, depending on what exemptions are included in a final rule, it is possible that Monarch Watch may need to modify some of our programs or obtain permits to continue some of our activities, including our education, conservation, and research programs, with some specifics described in the previous section. It is also possible that people and organizations that host events or activities associated with these programs may need permits, such as those that host tagging events or that regularly tag more than 250 monarchs. Some of these possibilities will depend on the wording used in the final rule and the interpretation of that wording, such as what the phrase “one location or facility” means as it relates to the 250-monarch limit.

Overview of Listing Process and Proposed Rule
The USFWS announced a proposed rule on Dec. 10, 2024, to list the monarch butterfly as threatened under the Endangered Species Act, including a 4(d) rule.

“Threatened” is defined as “likely to become endangered in the foreseeable future throughout a significant portion of its range,” and “endangered” is defined as “in danger of extinction throughout all or a significant portion of its range.”

If the proposed rule had been an endangered listing, there would have been an automatic set of prohibitions. A threatened proposed ruling with an accompanying 4(d) rule allows the USFWS to modify or exempt some prohibitions based on conservation and management needs identified specifically for the monarch. It is also important to note that this is a proposed rule. There is a 90-day comment period that will end on March 12, 2025. A final rule won’t be posted until up to a year later (by Dec. 12, 2025, unless there is an extension), and then rules typically become effective 30 days after posting.

The USFWS reached its decision based on a Species Status Assessment (SSA) for the monarch. An SSA is a risk assessment based on available information and considers both the current status of the species as well as expected future status based on possible scenarios. An SSA is based on the “3 Rs,” which are resiliency, redundancy, and representation, or collectively the likelihood a species can maintain wild populations.

There are two main monarch populations in the U.S., including the eastern migratory population and the western migratory population. The eastern migratory population occurs east of the continental divide and migrates from as far north as southern Canada to overwintering sites in central Mexico each year. The western population occurs west of the continental divide and overwinters along the coast of California. Estimates of population size for the eastern migratory population are based on estimates of the area of trees covered by monarchs, whereas estimates of population size for the western population are based on counts of individual monarchs at overwintering sites located along hundreds of miles of California coastline. For example, the eastern migratory population size was recorded as 0.9 hectares last overwintering season, which was the second-lowest population size on record. To put that in perspective, the highest population size based on current methods was recorded in 1996 at more than 18 hectares. Previous research has suggested there are approximately 21.1 million monarchs per hectare, so there were less than 19 million monarchs last year compared with more than 380 million in 1996. The western migratory population size is much smaller, with counts ranging from less than 2,000 to more than 1.2 million. Based on the SSA, the USFWS estimates that the eastern migratory population has declined by approximately 80%, with an extinction probability of 56% to 74% by 2080. The USFWS estimates the western population has declined by more than 95% since the 1980s, with an extinction probability of more than 99% by 2080.

When the proposed rule was announced, the 4(d) section was what many of us read first. In it, the USFWS identifies the need to increase the availability of milkweed and nectar plants, to protect and enhance overwintering habitat, to reduce the negative impacts of pesticides, and to maintain public support for monarch conservation. The USFWS also emphasizes the importance of people in shaping current conservation efforts and indicated its intent with the proposed 4(d) rule is to incentivize voluntary efforts.

The way that can be seen in the proposed 4(d) rule is that activities may continue that do not result in conversion of native or naturalized grassland, shrubland, or forested habitat, and that includes allowing for the removal of milkweed and nectar plants. The USFWS includes exemptions for “habitat restoration and management activities, livestock grazing and routine ranching activities, routine agricultural activities and conservation practices, fire management, silviculture and forest management, management of habitat on residential and other developed properties, and vegetation management activities when monarchs are not present.” The explanation for this approach is that the USFWS expects any localized removal of milkweed and nectar plants would be outweighed by the overall addition of milkweed and nectar plants at larger scales. The USFWS also mentions this is meant to reduce the fear of regulation by private landowners who could remove milkweed from their land now, prior to the final rule, fearing potential future regulatory constraints. The focus is on incentivizing voluntary efforts, especially given how extensive and successful voluntary efforts have been since the petition to list the monarch was submitted in 2014.

The USFWS also indicates it wants to maintain people’s interactions with monarchs. Where this can be seen in the proposed 4(d) rule is the exemption of small-scale collection, possession, captive-rearing, and release of monarchs. “Small-scale” is defined as 250 or fewer butterflies. That same 250-or-fewer number is applied to scientific research, educational activities, and the sale of captively reared monarchs.

The USFWS also provides an exemption for the possession of dead monarchs and monarch mortality due to vehicle strikes.

Critical habitat is also designated as part of the proposed 4(d) rule. The critical habitat designation identifies specific areas that are critical for the conservation of the species and may need special management or protection. There is some confusion over what that designation means. Critical habitat only affects federal agency actions, including activities funded by federal agencies or that require authorization by federal agencies, such as permits or licenses. Activities by private landowners are not affected unless federal funding or permitting is involved. In the proposed rule, critical habitat is focused on overwintering areas used by the western monarch population.

Another area of interest is potential limits on the use of pesticides. The USFWS includes specific areas where it seeks additional information and input, and that includes an extensive section seeking public comment on how to address pesticide use in the 4(d) rule.

We are in the 90-day comment period, which ends on March 12, 2025. For people or organizations thinking about providing comments, it is important to remember that the USFWS is required to base decisions on the best scientific and commercial data available, so consider how to provide an effective comment that can be used to inform the 4(d) rule.

Additional Reading from Monarch Watch
Monarch Listing Announcement Expected Next Week
Species Status Assessment and the three r’s
The pending decision: Will monarchs be designated as threatened or endangered?
Why there will always be monarchs
Monarchs now ranked as ‘endangered’ in Canada

Photo by Damien Campbell on Unsplash