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This is the second installment of a three-part series detailing the listing process under the Endangered Species Act for the monarch butterfly.
Welcome back to Farmer for Monarchs’ series on the Endangered Species Act (ESA) listing process for the monarch butterfly. In our first post, we examined the intricate review process conducted by the U.S. Fish and Wildlife Service (USFWS) and traced the history of the monarch’s consideration for listing. In this post, we will clarify the differences between a species being classified as threatened or endangered and how that guides regulatory actions. We will also delve deeper into any potential designation of critical habitat and its implications for farmers and general conservation efforts. Additionally, we will provide an overview of the 4(d) rule, a flexible regulatory mechanism designed to tailor protections for threatened species while accommodating economic and social activities.
As we referenced in our first post, following the species review process, the USFWS determined in December 2020 that listing the monarch under the ESA was warranted but precluded by higher priority listing actions. In December 2024 the agency is expected to publish a 12-month finding on the status of the monarch butterfly. If the monarch still warrants listing, this finding will include a rule proposing to the 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) 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
To reiterate, 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.
About the 4(d) Rule
The 4(d) rule 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 of 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: Typically, 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.
- Examples of previous 4(d) Rule applications include:
- Dakota Skipper Butterfly: According to the Iowa Monarch Conservation Consortium, the Dakota skipper butterfly was listed as threatened in 2014, and within the same year, USFWS developed a 4(d) rule that exempts incidental take resulting from livestock operations, including grazing and haying. The USFWS recognized that livestock operations could aid in species conservation. Therefore, the 4(d) rule reduced any potential hardship livestock producers might face (e.g. having to obtain an incidental take permit) to maintain regular operations that were potentially helpful, not harmful, to Dakota skippers.
- Northern Long-Eared Bat: The 4(d) rule restricted tree removal activities near roosts and hibernacula but allowed certain forestry activities, under the condition of having a plan and doing positive conservation work, that are beneficial to the species while the 4(d) rule was in place. The species was reclassified as endangered in 2022.
- Lesser Prairie-Chicken: The rule promotes conservation practices on private lands and allows specific agricultural and ranching activities that support the species’ habitat.
- Dusky Gopher Frog: The rule for the dusky gopher frog restricts activities like land clearing and development within critical habitat areas (described above) but allows certain forest management activities that benefit the species.
The 4(d) rule allows for more nuanced and effective conservation strategies that can adapt to the unique circumstances of each threatened species, providing a practical approach to species management and recovery. Public involvement during the rulemaking process can help USFWS identify those activities and programs that may affect the species as well as potential changes to prohibitions. The information collected during the rulemaking process is used to develop a proposed 4(d) rule. That means input from the agriculture community will be crucial in shaping a potential 4(d) rule, allowing for flexible regulatory actions that balance conservation needs with economic considerations.
In our final post in this series, we’ll detail the rulemaking process, the timeline, and the opportunities farmers and landowners may have to shape any final regulations.