On Sept. 24, 2020, the California Fish and Game Commission proceeded with a one-year candidacy period to determine whether the western Joshua tree should be listed as a threatened species under the California Endangered Species Act (CESA). As of today, the result of the candidacy period has not been published and the Commission website indicates the California Department of Fish and Wildlife (CDFW) status review report is due on April 9, 2022. For developers and architecture, engineering and construction (AEC) firms working in California, this pending designation will require additional planning to mitigate and offset impacts to Joshua trees.
Between 1984 and 2017, Southern California deserts lost approximately 35% of their vegetation due to variability in rainfall and climbing temperatures, according to researchers at the University of California, Irvine. The petition to list the western Joshua tree cited climate change as the greatest threat to the trees' continued existence. Wildfires, invasive species, predation and habitat loss due to human development were identified as contributing factors that collectively threaten the continued viability of the species. Joshua trees play an essential role in the ecosystem, providing habitat for numerous birds, mammals, insects and lizards — in addition to being an iconic species in California. Considering these factors, the commission accepted the petition, noting the information presented would lead a reasonable person to conclude that the western Joshua tree would be listed as threatened.
As many developers and AEC firms in California are aware, environmental permitting can seriously delay a project. During site selection and conceptual design, the developer and AEC firm should confirm that an environmental consultant is part of their team. Specifically, this person can help the team mitigate impacts to Joshua trees and can assist with project permits relating to CESA.
A developer looking to build on a specific plot of land where Joshua trees grow should be prepared to follow these steps to support the growth of Joshua trees and comply with CESA:
- Assess if direct and indirect impacts to Joshua trees can be avoided or minimized by altering the project design. Resource agencies will require developers and builders to incorporate avoidance and minimization measures into Incidental Take Permit applications.
- Once avoidance and minimization strategies are incorporated, identify potential project- and species-specific mitigation measures for the remaining impacts.
- Develop a mitigation strategy (i.e., purchasing mitigation credits or securing land for permittee-responsible mitigation to permanently protect and manage compensatory habitat).
- Determine the feasibility of the project with these new constraints. Assess if developing a specific plot of land will be too costly or cumbersome due to potential Incidental Take Permit requirements.
- Prepare and apply for an Incidental Take Permit.
Ideally, the project can be designed to avoid impacts to Joshua trees; however, if this is not the case, the project will need an Incidental Take Permit. An Incidental Take Permit allows the permittee to take (i.e., remove, collect or capture) an endangered or threatened species if such taking is incidental to, and not the purpose of, carrying out an otherwise lawful activity, such as construction or development of a site. While an Incidental Take Permit indicates that the CESA-listed species could be harmed by development on the site, it also requires the applicant to identify and implement minimization and avoidance measures to protect the species. Burns & McDonnell was the first organization to successfully navigate the application process and receive an Incidental Take Permit for western Joshua trees in California.
One of the first steps of the Incidental Take Permit is to contact the CDFW Regional Office that will oversee your project. The permit process for Joshua trees is still evolving and the office will be able to provide the latest guidance. During this initial phase, it is also critical to review local regulations, as a municipality or other local government may have additional Joshua tree permit requirements.
Another early consideration is your project’s approach to the California Environmental Quality Act (CEQA). In seeking an Incidental Take Permit, the application must include documentation of CEQA compliance.
The basis of the Incidental Take Permit will be the Joshua tree survey of the current site conditions. A qualified botanist will have to conduct a detailed survey of the Joshua trees to determine health, density, age, class, height and vegetation alliance. If required by local regulations, the botanist may also determine if transplanting any trees would be feasible.
Using this site-specific information and knowledge of the project, the applicant can prepare the Incidental Take Permit application, which consists of 13 questions. These include the scientific names of the species covered by the permit, a project description, an impact analysis, proposed steps to monitor compliance, and measures to minimize and fully mitigate the impacts of the proposed taking. Proposed mitigation measures include constructing protective fencing around sensitive habitats, surveying the land to mark sensitive habitats, and providing education programs for on-site construction personnel to identify the endangered species.
Throughout this process, coordination is critical for all stakeholders, including the developer, AEC firm, environmental consultant, construction contractor, regulatory agencies and local municipality. The environmental consultant understands the impacts on the local species, the permitting process, and may have experience and relationships with the regulatory agencies. The AEC firm could identify alternate design options to avoid additional impacts. Additionally, the construction team understands how work will proceed on-site and the feasibility of proposed mitigation measures. Collaboration among all parties can streamline the permitting process, keep the project on schedule and produce an effective mitigation strategy to protect the continued existence of Joshua trees.
Once the Incidental Take Permit application is submitted, the CDFW has 30 days to determine if the application is complete. When the application is deemed complete, the CDFW must draft the Incidental Take Permit within 90 days, unless they determine the project cannot meet the conditions set forth in Fish and Game Code Section 2081 (b). The Incidental Take Permit will include requirements for mitigation of project-related impacts.
Whether a developer is installing solar panels or building an industrial facility, new projects that will impact special status species (such as Joshua trees) will need to understand and follow the appropriate regulatory process. To comply with the California Endangered Species Act, developers will need to apply for an Incidental Take Permit and identify a mitigation strategy.
