October 25, 2021

Volume XI, Number 298

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October 22, 2021

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

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)

© 2010-2021 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume X, Number 276
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About this Author

Barry H. Epstein Land Use and Environmental & Natural Resources Attorney Allen Matkins Law Firm San Francisco
Partner

Barry Epstein is a partner in the San Francisco office and a member of the Land Use and Environmental & Natural Resources Practice Groups. His practice focuses on energy law, water rights, land use, and natural resources, representing private and public clients in permitting, transactional and litigation matters.

Barry's energy and public utility practice involves power plant and transmission line siting and permitting in California Energy Commission and local agency venues, public utility regulation before the California Public Utilities...

(415) 273-7469
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