California Landowners and Developers: Western Joshua Tree Incidental Take Permits Now Required

Allen Matkins
Contact

Allen Matkins

On September 22, 2020, the California Fish and Game Commission (CFGC) accepted the Center for Biological Diversity's petition to list the Western Joshua Tree (WJT) as a candidate threatened species under the California Endangered Species Act (CESA). While offering at least interim protection to this iconic plant, this action will likely further complicate the entitlement process for development projects and may affect other landowner activities within the WJT's habitat (which includes millions of acres in Southern California).

WJT CANDIDATE STATUS OVERVIEW

Unlike the Federal Endangered Species Act (which only covers species once they are listed), CESA protects candidate species being considered for listing as threatened or endangered. Thus, with the candidate listing of WJT as threatened, CESA prohibits the "take" of WJTs without the California Department of Fish and Wildlife's (CDFW) authorization. (See CDFW CESA Permits Overview, available at https://wildlife.ca.gov/Conservation/CESA/Permitting.) Section 86 of the Fish and Game Code defines "take" as to "… kill, or attempt to … kill." Developers of construction, energy, transportation, and other infrastructure-related projects, and landowners engaged in physical activities on their property, often seek incidental take permits before engaging in any otherwise lawful activity that would result in the taking of CESA-listed threatened species.

The WJT's habitat encompasses more than 3.5 million acres of the Mojave Desert in Southern California and includes urban areas like the cities of Fontana, Yucca Valley, Palmdale, Lancaster, Hesperia, and Victorville. Project developers and landowners in this area must now obtain WJT incidental take permits or risk enforcement under CESA if a “take” has occurred.

INCIDENTAL TAKE OF WJT FOR SELECT SOLAR ENERGY PROJECTS

During its September 22, 2020, meeting, the CFGC also adopted a rule authorizing incidental take of WJT by 15 shovel-ready solar energy projects. Each of these solar projects must pay a mitigation fee of $10,000 per acre of project area that may contain WJTs and adhere to other requirements.

WHAT'S NEXT?

The CDFW now has up to a year to produce a peer-reviewed status report on the WJT before the CFGC either approves or disapproves the WJT's permanent threatened status at a public hearing. Opponents of the CFGC's candidate listing decision could seek judicial relief (through litigation).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Allen Matkins | Attorney Advertising

Written by:

Allen Matkins
Contact
more
less

Allen Matkins on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.