On July 10, 2023, California Governor Gavin Newsom approved SB-122, which included amendments to the Fish and Game Code to add the Western Joshua Tree Conservation Act (the “Act”), for the purpose of protecting the Western Joshua Tree, providing a standard mitigation fee for development in occupied areas, and creating a mitigation fund and conservation plan to help conserve the species. This Act went into effect immediately on July 10, 2023, and is codified in a new Chapter 11.5 of Division 2 of the Fish and Game Code. Notably, the Act, covers Western Joshua Tree (Yucca brevifolia), but not the Eastern Joshua Tree (Yucca jaegeriana). Western Joshua Trees are found in Southern California primarily in Inyo, San Bernardino, Kern, Los Angeles, Riverside and Mono counties.

As background for the enactment of the Act, the Western Joshua Tree was listed as a Candidate species under the California Endangered Species Act (“CESA”) in September of 2020, based on a petition for listing filed by the Center for Biological Diversity on October 21, 2019. As a Candidate species under CESA, the Western Joshua Tree was given temporary protection under CESA until a final vote is rendered regarding whether to list the species as endangered, threatened, or to reject the petition for listing. (See Fish and Game Code § 2068.) The Western Joshua Tree is still an active Candidate species under CESA, as the Fish and Game Commission have not yet issued a final decision on listing. Given the uncertainty surrounding the potential listing of the species as threatened or endangered, the new Fish and Game Code Sections 1927.2(e)-(f) provide that the Western Joshua Tree Conservation Act shall become inoperative if the Western Joshua Tree is listed as threatened or endangered under CESA, and in the event of that listing, authorization for “take” of this species shall only be allowed by either issuance of a take permit under CESA, or if a Natural Community Conservation Plan has been approved for this species under the Natural Community Conservation Act (Chapter 10 of Division 3 of the Fish and Game Code), take shall be authorized pursuant to the Natural Community Conservation Act.

The Western Joshua Tree Conservation Act includes a process for obtaining take authorization for Western Joshua Tree, similar to the take permit process under CESA. Under the take authorization process provided under the Act, the permittee is required to submit a census of trees onsite, include practicable minimization and avoidance measures in the project, and provide proportional compensatory mitigation for take of species. (Fish and Game Code § 1927.3(a).) The Act also includes an in-lieu fee option whereby a permittee may pay a fee, in-lieu of providing compensatory mitigation, for each Western Joshua Tree removed. (Fish and Game Code §§ 1927.3(d)-(e).) The in-lieu fee varies by size of the removed trees, with much greater fees for larger trees, and also varies by geographic location with take authorization being more costly in some regions. (Id.) The Act includes creation of a Western Joshua Tree Conservation Fund, which replaces the former Western Joshua Tree Mitigation Fund, in order to receive fees received under the Act. (Fish and Game Code § 1927.5.) The Act also requires development and implementation of a Western Joshua Tree conservation plan, in coordination with the Fish and Game Commission, other governmental agencies, California Native American Tribes and the public, which conservation plan will include management actions and objective success criteria. (Fish and Game Code § 1927.6.) Finally, the Act provides for delegation of take authorization authority to cities and counties; however, this delegation only applies to single-family residences, multifamily residences, accessory structures, and public works projects.

The Act may benefit proponents of new land use projects in the California desert, as there is now more certainty to the process and cost for mitigating impacts to Western Joshua Tree. Additionally, the statutory in-lieu fee may prove to be a quicker path to mitigating project impacts than traditional take permits under CESA. However, developers of projects in this region should track the listing process for Western Joshua Tree at the Fish and Game Commission carefully, as a formal listing of the species as threatened or endangered would make the Act inoperative and eliminate the in-lieu fee mitigation option and the streamlined authorization process provided in the Act.