California Protects Western Joshua Tree, Adopts Permitting Framework

On 27 June 2023, the California legislature passed the Western Joshua Tree Conservation Act, which California Governor Gavin Newsom is expected to sign into law in a matter of days.

The western Joshua tree has been protected as a candidate species under the California Endangered Species Act (CESA) since 2020, although the Fish and Game Commission (Commission) has repeatedly punted on whether to formally list the species as threatened or endangered.

The Western Joshua Tree Conservation Act formally prohibits the take of that species absent a permit. The Act also adopts a refreshingly straightforward permitting program. Most notably, the new program allows project proponents to choose between providing traditional mitigation (such as purchasing off-site mitigation lands) or simply paying an in-lieu fee of up to $2,500 per impacted western Joshua tree. But while the Act’s permitting framework is promising, it may not be durable: the Act automatically becomes inoperative if the Commission ultimately decides to list western Joshua tree as threatened or endangered under CESA, at which point take permits could only be issued through the normal, more cumbersome CESA framework.

Background

The Commission designated the western Joshua tree as a candidate species on 22 September 2020, following a 2019 petition to list the species by the Center for Biological Diversity. Because CESA affords candidate species the same protections as listed species during their candidacy period, “take” of western Joshua tree has been prohibited since September 2020 absent an incidental take permit from the California Department of Fish and Wildlife (CDFW).

Since then, however, the Commission has failed to decide one way or the other whether to list the species as threatened or endangered. Although CDFW recommended against listing in its April 2022 report to the Commission, the Commission deadlocked on a listing decision in June 2022, and earlier this year decided to postpone another vote as it waited to see whether the Western Joshua Tree Conservation Act would become law.

For its part, the United States Fish and Wildlife Service has repeatedly declined to list the western Joshua tree under the federal Endangered Species Act.

Western Joshua Tree Conservation Act

Enacted as part of a trailer bill, the Act has several key components relevant to project developers.

Prohibition of take. The Act makes it unlawful to import, export, “take, possess, purchase, or sell” a western Joshua tree or any part thereof except as authorized by the Act, CESA, or the Natural Community Conservation Planning Act.

Take authorization framework. Under the Act, as long as the western Joshua tree remains a CESA candidate species, an applicant can generally obtain authorization to take western Joshua trees by means of a CESA incidental take permit from CDFW or, alternatively, through a separate permit issued by CDFW as authorized by the Act. All applicants for permits under the Act must:

• Submit to CDFW for review and approval a census of all western Joshua trees on the project site.
• Avoid and minimize impacts to and take of western Joshua tree to the maximum extent practicable. Minimization may include actions such as relocation that are detrimental, but not lethal, to the species.
• If required by CDFW, relocate western Joshua trees. Where CDFW requires relocation, the permittee must implement specified measures designed to enhance the survival of relocated trees.

All recipients of permits authorized by the Act must also compensate for their impacts to western Joshua trees. Here, applicants have two options. First, the applicant can elect to provide compensatory mitigation that is “roughly proportional in extent to the impact of the authorized taking of the species.” As is standard, such measures must be capable of successful implementation and adequately funded by the applicant.

Second, and alternatively, the applicant can satisfy its compensatory mitigation obligation by paying in-lieu fees, to be deposited into the Western Joshua Tree Conservation Fund. The Act’s fee schedule varies based on the location of the project. For projects in much of the area roughly between Bakersfield and Victorville, the Act proscribes the following fees:

• $1,000 per tree 5 meters or greater
• $200 per tree greater than 1 meter but less than 5 meters
• $150 per tree less than 1 meter.

In all other areas, including any project site within two miles of Joshua Tree National Park, the Act imposes the following fees:

• $2,500 per tree 5 meters or greater
• $500 per tree greater than 1 meter but less than 5 meters
• $340 per tree less than 1 meter.

The Act directs the Commission annually to adjust these fees “as necessary to ensure the conservation of the species.”  Where a permittee is required by another law to acquire compensatory habitat mitigation land that also conserves western Joshua tree, the Act authorizes (but does not require) CDFW to reduce these fees upon the applicant’s request.

The Act also authorizes CDFW to delegate permit issuance to cities and counties that meet specified criteria, but only for single family residences, multi-family residences, accessory structures thereto, and public works projects; renewable energy projects do not qualify for delegated permit issuance, and therefore must go through CDFW.

Finally, the Act provides a separate permitting pathway for CDFW to authorize trimming or the removal of dead western Joshua trees.

Automatic termination upon CESA listing. Whether and for how long the Act remains operative depends on the Commission’s still-pending decision whether to list the western Joshua tree under CESA. If the Commission decides not to list the species – consistent with CDFW’s recommendation and USFWS’s decisions – the Act will remain effective indefinitely, prohibiting take of western Joshua trees unless pursuant to a permit authorized by the Act. If, however, the Commission decides listing is warranted, then the Act “shall become inoperative” and take may only be authorized pursuant to CESA or the Natural Community Conservation Planning Act. Relevant here, the Act directs the Commission to reopen the administrative record on its pending listing decision and specifically to consider factors such as the effectiveness of conservation measures funded by fees collected through the Act.

Other provisions. The Act contains a number of other important, though less headline-worthy, provisions. It clarifies, for example, that the Act has no impact on take authorizations CDFW has already issued under CESA. It also renders the Native Plant Protection Act and the California Desert Native Plants Act inapplicable to the western Joshua tree. At the same time, the Act does not prohibit cities and counties from adopting and enforcing ordinances that offer greater protections to western Joshua tree than does the Act.

The Act also directs CDFW to develop and implement a western Joshua tree conservation plan (with a draft due to the Commission by 31 December 2024), as well as to provide the Commission and the Legislature with annual reports assessing the conservation status of the western Joshua tree beginning in 2025.  Based on these reports, every two years beginning in 2026 the Commission must review the status of the western Joshua tree and the effectiveness of the conservation plan. For its part, CDFW must provide an updated CESA status report on western Joshua tree to the Commission no later than January 1, 2033.

Implications

The Act provides not only robust protections for western Joshua tree, but also welcome, if potentially temporary, certainty along with a straightforward permitting framework for developers of projects that will impact western Joshua tree. Instead of going through a lengthy, uncertain incidental take permitting process, developers should now be able to obtain take authorization relatively quickly and predictably.

Just how long this framework lasts, though, remains to be seen, as the Commission can render the entire Act inoperative by listing the western Joshua tree as threatened or endangered under CESA. Based on the Commission’s hesitation to issue a listing decision to date and that environmental groups such as the Center for Biological Diversity have cheered passage of the Act, we would be surprised if the Commission listed the species anytime soon. Much more likely, in our view, is a decision not to list. At least for now. Particularly because the Act not only allows but requires the Commission to reassess the status of the western Joshua tree on a biennial basis, the Act likely does not herald the end to, but instead only delays, disputes before the Commission over whether ultimately to list the western Joshua tree.

Bell Kearns specializes in advising on the review and entitlement of large-scale renewable energy projects. If you have any questions regarding this article, please feel free to contact us at +1.415.230.0599 or info@bell-kearns.com.