The USFWS is expected to submit to the Federal Register for publication either a warranted or not warranted finding for the monarch butterfly by no later than December 4, 2024. The species is currently being re-evaluated after a 2020 decision found the monarch butterfly to be warranted for listing under the Endangered Species Act but precluded by higher-priority listing actions by the U.S. Fish and Wildlife Service.

If the monarch still warrants listing, this finding will include a rule proposing to list the species as either endangered or threatened. These terms have specific legal definitions, reflecting the varying degrees of risk faced by species.

Endangered Species: An endangered species is one that is in danger of extinction throughout all or a significant portion of its range. Endangered species receive the highest level of protection under the ESA. This includes prohibitions against taking (which encompasses harming, harassing, capturing, or killing) individuals of the species, as well as protections for their habitats. Activities that could impact endangered species or their habitats are heavily regulated, often requiring permits and detailed mitigation plans.

Threatened Species: A threatened species is one that is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. While receiving the same protections as endangered species, the USFWS can issue more flexible regulations for threatened species. The ESA allows for special rules under Section 4(d) of the Act to tailor protections to the specific needs of threatened species. The 4(d) rule can modify or exempt certain prohibitions to balance conservation efforts with economic impacts, for example. This flexibility can ​incentivize positive​ proactive conservation actions. This also means public involvement can play a critical role in shaping regulatory policy that would come with a proposed rule.

Critical Habitat: When a species is proposed for listing as endangered or threatened under the Endangered Species Act, USFWS may identify specific areas that are essential to its conservation. These areas are the species’ critical habitat. Critical habitat refers to specific geographic areas that are essential for the conservation of endangered and threatened species. These areas contain physical or biological features vital for the life processes and successful reproduction of the species.

Critical habitat designations do not affect activities by private landowners if there is no federal “nexus” – that is any federal funding or permits required to carry out the activity. Designation of critical habitat does not:

• Affect land ownership.
• Allow the government to take or manage private property.
• Establish a refuge, reserve, preserve, or other conservation area.
• Allow government or public access to private land.

Only activities that involve a federal permit, license, or funding, and are likely to destroy or adversely modify critical habitat, will be affected. If this is the case, USFWS will work with the agency and landowners to amend the project to enable it to proceed without adversely affecting critical habitat. Most federal projects are likely to go forward, but some may be modified to minimize harm.

Section 4(d) of the ESA allows USFWS to create tailored regulations for the conservation of species listed as threatened. The rule provides flexibility in managing threatened species by specifying protections that are necessary and advisable for their conservation, while allowing for certain activities that might otherwise be restricted under the ESA. Some key features of the 4(d) rule include:

• Flexibility: Without a 4(d) rule, threatened species get all the protections that endangered species automatically get through Section 9 of the ESA. The 4(d) rule for a threatened species may change some or all the section 9 protections. This might include allowing certain types of development, agricultural practices, or other activities that do not significantly harm the species.
• Tailored Protections: A 4(d) rule typically explains that certain expected activities are consistent with or contribute to a species’ overall conservation; therefore, even if those activities result in take of a threatened species, that take is not prohibited. If that take is not prohibited, then it does not require an exemption from the take prohibitions.
• Encouraging Proactive Conservation: the USFWS uses 4(d) rules to incentivize positive conservation actions and streamline the regulatory process for minor impacts. As a part of those goals, the rule is often used to clarify or simplify what forms of take of a threatened species are and are not prohibited. By offering more flexible regulations, the 4(d) rule encourages landowners, farmers, businesses, and other stakeholders to engage in proactive conservation efforts.

If the monarch butterfly is listed as threatened, a 4(d) rule may also be proposed, some land management strategies could be included to exempt these actions from being considered species take or harm. The goal would be to encourage continued voluntary conservation actions that improve and add monarch butterfly habitat. However, the monarch butterfly is an extremely unique case because they can be found across a wide range of the United States compared to other listed species that occur in distinct areas. Therefore, additional considerations will likely be added to any potential 4(d) rules.

A decision regarding whether listing is warranted or unwarranted will certainly generate interest in both the conservation community and in the public. Initial publication of the decision will be followed by a public comment period before the final decision is made.