>>The more residents and property owners who sign on to support reasonable Joshua tree regulations, the more likely we are to get support from our legislators!

Dear Honorable Governor Newsom, Senators, and Representatives,

Two years after approval of the Western Joshua Tree Conservation Act, there are no clear permitting rules, definitions, or project guidelines for high desert property owners.

We respectfully ask the Governor and legislators bring a spotlight to our questions and help the Department of Fish and Wildlife, and Fish and Game Commission, complete and publicly post reasonable Joshua tree regulations as quickly as possible.  The Department has stopped responding to resident questions and has no clear plan or timeline for when they’ll post clear and understandable permitting rules.

Property owners and communities are suffering project delays and economic harm from the permitting confusion. For example, properties with a large number of trees face permitting fees of $18K-33,000 to build a house; replacing a water line could cost $10K-60,000; and improving buildings and adding a utility line could cost $20,000 or more. The Act provides no cap on SFR permit fees.

Worse, property owners face permit fees in perpetuity. Every time we dig or build on our property, we’ll pay a fee. This includes building a fence, planting a garden, building an ADU, repairing a waterline, replacing a septic tank and leach lines, grading near an existing home, and more. Since most of the trees CDFW considers “taken” remain standing, property owners pay permit fees repeatedly for the same trees.

We could do everything possible to minimize impact and take and still the Department financially punishes property owners. We believe the Department should define take as lethal removal, and within a 10’ buffer, require arborists establish protection zones to minimize impact so there is no take. We believe you should exempt current SFR and small businesses.

The Department developed permitting rules in secret and still never publicly posted them.

1.      They are struggling to define “take” – the Department has verbally told us they define “take” as “to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” That is not an appropriate definition for a tree. In an August 30th LA Times article, Department staff acknowledged defining “lethal take” is challenging and said the definition is the point where you are at risk of killing the tree.  None of this rule making is supported by studies of the urban forest and did not go through the Commission, public debate, or review, and the definition is not posted anywhere.

2.      The mystery of “buffer takes” – when a project comes within 50’ or so (they won’t specify the distance) of a large Joshua tree on the property or neighboring property, the department will mark the tree as “taken” and charge the permit fee even if the trees remain standing. CDFW scientists assigned to the project make “take” decisions on a case-by-case basis using the seven factors listed in the Avoidance Buffers section of the Conservation Plan. Property owners cannot determine what distances from a tree they need to contact CDFW before digging. It also makes it impossible to forecast permit fee liabilities when buying or selling property. The Department said they are using best available science, but won’t say what those studies are. Buffer takes are not mentioned in the Act, in fact, it states the opposite, allowing “encroachment on roots and detrimental impacts” as long as the project owner minimizes impact.

We believe our local arborists and independent scientists can demonstrate Joshua trees survive and thrive next to buildings. The proof can be seen in our communities.

3.      They are missing guidance - the Act required the Conservation Plan include “guidance for the avoidance and minimization of impacts.” The Department noted repeatedly the plan is not regulatory and the chapter labeled minimization guide is too general and non-specific to be useful to us. Under CESA ITPs, the Department has listed specific minimization measures for other protected species.

The rule making process the Department and Commission are following is disturbing in our opinion.

·        Residents and stakeholders were repeatedly told during Commission meetings our comments about the Conservation Plan were misdirected because the plan is not a regulatory document. Residents were told by staff in 2023 and 2024 the Plan would include Joshua tree permitting rules but that turned out to be incorrect. In addition, the plan includes chapters about the buffer take factors and a guide to avoidance and minimization. Permit applicants are required to minimize impact and we need specific, clear guidelines. Finally, in public meetings and posted comments, the Department stated the plan now applies to project proposals.

·        All parties have admitted at workshops and meetings the Act is poorly written and unfairly challenging for SFR property owners.  The Act was written for large solar projects and housing developments and not written for SFR property owners. “Homeowners are really struggling” noted Director Charles Bonham[4]. President Erika Zavaleta shared her belief that “conservation reflects people.” During the March public workshops and at other meetings, staff called the Act “confusing” and “contradictory.” Yet the Commission and Department have no plan to resolve the confusion and provide clear, simple, and reasonable regulations.

·        The Commission frequently praised environmental groups for crafting the legislation as the State’s first conservation effort driven by climate change. The Commission’s comments appear to us to favor environmental groups while ignoring the struggles of residents and our input. The Commission and Department have not responded to our comment letters, brushed off invitations to tour our neighborhoods, and failed to respond to emails and calls.

·        The core challenge is the State declared Joshua trees endangered when they are ubiquitous across properties and communities, thus creating exceedingly high protections impossible for land owners to meet. Many property owners have dozens to 100+ Joshua trees per acre. There is no connection between saving trees within the urban environment and long-term survival of Joshua trees as one academic told us.

·        The California Wildlife Conservation Board developed and provided a State grant to the Joshua Tree Conservation Coalition which has told our residents group and publicly operated water districts we are not welcome to join the Coalition because the Coalition is focused on the wildland. We have no voice in Joshua tree conservation efforts and rules impacting us.

Who regulates the regulators when they overregulate?

We encourage you to shine a spotlight on the secretive development and overly complex implementation of Western Joshua tree permitting rules. We have lost faith in Department leadership and Commissioners as trusted partners. We need your help.

Ways you can help.

1.      You could facilitate a meeting with the Department and Commissioners to answer our list of 10 questions we sent them as well as respond to our request for project guidelines. Resident groups from other communities are welcome to join us.

2.      You could hold hearings to understand the Department and Commission’s rule making process and invite residents and community leaders to share our perspectives.

3.      Legislators or experts you delegate could help us interpret language within the Act, including defining “minimize impact” and “minimization may include trimming, encroachment on root systems, relocation, or other actions that result in detrimental but nonlethal impacts.”

4.      Require the Department to include residents, communities, and the urban Joshua tree forest in the Conservation Plan and scientific research. We pay the fees, we should be included.

5.      Provide immunity for residents who completed projects and didn’t know the rules because the Department’s permitting definitions and rules are not publicly posted and vague. 

We understand the State is focused on the development of large scale solar and these permitting rules are necessary for those projects. At the August meeting, Director Bonham and the Large Solar Association both applauded the flexible, ad-hoc nature of the permitting rules on a project-by-project basis. We strongly oppose clear cutting Joshua tree forests for energy solution, but acknowledge these are the priorities of the State. While ad-hoc and project-by-project work for solar, it is not working for our communities and SFR property owners. We deserve clear, simple rules.

The Act was designed to create community adaptation pathways and create one and done streamlined permitting to support the co-equal goals of conserving these unique and beautiful trees, energy production, and housing.

We believe the goals and spirit of the Act are completely lost in the Department and Commission’s implementation. Only our legislators can help get it back on track.

Sincerely,
Morongo Basin Residents for Reasonable Joshua Tree Regulations