California Department of Fish and Wildlife

Safe Harbor Agreements for Private Landowners

California State Safe Harbor Agreement Program act Facts

Because many California Endangered Species Act (CESA) listed species occur primarily or exclusively on privately owned property, the California Department of Fish and Wildlife (CDFW) believes it is critical to species’ recovery to collaborate with private landowners (i.e., individuals, municipalities, timberland owners, and other non-state and non-federal entities) to conserve, protect, restore, and enhance listed species and their habitats.

Private landowners are often willing participants in efforts to recover listed species; however, some may be reluctant to support or attract listed species on their properties, due to concern about land use restrictions that may occur if listed species colonize on their property or subsequently increase in numbers as a result of land management.

On October 11, 2009, the Governor signed SB 448 into law adding Fish and Game Code sections 2089.2-2089.26, enacting the California State Safe Harbor Agreement Program Act (SHAPA) to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by CDFW, to benefit endangered, threatened, or candidate species without being subject to additional regulatory restrictions as a result of their conservation efforts.

What is the landowner’s role?

Voluntarily agrees to implement CDFW’s recommendations for management activities and other recommendations that will contribute to the recovery of a listed species, and works with CDFW to develop the safe harbor agreement.

What are the benefits?

The landowner receives regulatory assurances that the owner can alter or modify property enrolled in the safe harbor agreement and return it to the originally agreed upon “baseline” conditions at the end of the agreement, even if this means incidentally “taking” the covered species.

The species benefits by making progress towards recovery.

Definitions that apply to SHAPA:

Baseline conditions means the existing estimated population size, the extent and quality of habitat, or both population size and the extent and quality of habitat, for the species on the land to be enrolled in the agreement that sustain seasonal or permanent use by the covered species. Baseline conditions shall be determined by CDFW, in consultation with the applicant, and shall be based on the best available science and objective scientific methodologies. For purposes of establishing baseline conditions, a qualified person that is not employed by CDFW may conduct habitat surveys, if that person has appropriate species expertise and has been approved by CDFW.

CDFW will describe the baseline of the enrolled property in terms appropriate for the target or covered species, such as number and location of individuals, if it can be determined. Probably the most common metric will be a measurement of the habitat. For example, in a stream restoration project to benefit listed salmonids, we may use the miles of occupied stream habitat being restored as the baseline measurement. We will also use other information, such as habitat characteristics that support the covered species and any other information that helps to document the current conditions.

Landowner means any person or non-state or non-federal entity or entities that lawfully hold any interest in land or water to which they are committing to implement the requirements of this article.

Net conservation benefit means the cumulative benefits of the management activities identified in the agreement that provide for an increase in a species’ population or the enhancement, restoration, or maintenance of covered species’ suitable habitats within the enrolled property. Examples of such benefits include: reduction of habitat fragmentation; maintenance, restoration, or  enhancement of existing habitats; increase in habitat connectivity; maintenance or increase of  population numbers or distribution; reduction of the effects of catastrophic events; establishment of buffers for protected areas; and areas to test and develop new management techniques.

Before entering into a safe harbor agreement, CDFW must make a written finding that the covered endangered or threatened species will receive a “net conservation benefit” from the agreement’s management actions. The finding must clearly describe the expected net conservation benefits and how CDFW reached that conclusion.

Net conservation benefits must contribute, directly or indirectly, to the recovery of the covered species. This contribution toward recovery will vary and may not be permanent. The benefit to the species depends on the nature of the activities to be undertaken, where they are undertaken, and their duration.

Programmatic agreement means a state safe harbor agreement issued to a governmental or nongovernmental program administrator. The program administrator for a programmatic agreement shall work with landowners and CDFW to implement the agreement. The program administrator and CDFW shall be responsible for ensuring compliance with the terms of the agreement.

Return to baseline means, at the termination of an agreement, activities undertaken by the landowner to return the species population or extent or quality of habitat to baseline, excluding catastrophic events such as floods, unplanned fires, or earthquakes, and other factors mutually agreed upon prior to permit issuance and that are beyond the control of the landowner.

Important considerations

Funding – The funding assurance requirement for safe harbor agreements differs from that for a 2081 (b) incidental take permit. CDFW is required to determine that sufficient funding is ensured, for determining baseline conditions, monitoring, and carrying out management actions for the duration of the agreement.

Proprietary Information received by CDFW is not public information, and CDFW shall not release or disclose the proprietary information to any person, including any federal, state, or local governmental agency, outside of CDFW.

Public Information – Information that has been transformed into a statistical or aggregate form without identifying any individual owner, operator, or producer, or the specific location from which the information was gathered.

Access To Enrolled Lands – CDFW shall provide notice to the landowner at least seven days prior to accessing the land or water for any activity related to the agreement. The notice shall identify each person selected by CDFW, its contractors, or agents to access the land or water. A safe harbor agreement does not provide the public a right of entry onto the enrolled land or water.

Selling Enrolled Lands – If a landowner seeks to sell, transfer, or otherwise alienate the land or water enrolled in the agreement during the term of the agreement, the person or entity assuming that interest in the property shall (a) assume the existing landowner’s duties under the agreement, (b) enter into a new agreement with CDFW, or (c) withdraw from an existing agreement under the terms provided in the agreement, as approved by CDFW.

Landowner Liability – Notwithstanding any other law, the landowner shall not be liable for any injury, and does not owe a duty of care, to CDFW, its contractors, or agents resulting from any act or omission described in a safe harbor agreement.

Timeline

Safe harbor agreements will likely follow the same process as incidental take permits outlined in California Code of Regulations, title 14, section 783.5, however, at this time there are no regulations implementing the process. Staff will likely process the majority of the agreements within 3-5 months. Complex agreements related to an unusually large project size, mechanism and timing of funding, CDFW staffing, species’ ecology, or when CDFW is CEQA lead agency are expected to require extended processing times.

Consistency determination

If a landowner has a federal safe harbor agreement authorizing take for a dually listed species, no further authorization or approval is necessary under SHAPA for any person authorized by that agreement to take the species identified in and in accordance with the federal safe harbor agreement, if the landowner and CDFW follow all of the procedures specified in Section 2080.1, except that the determination of consistency shall be made by CDFW based only on the issuance criteria of SHAPA.

Neighboring Landowners

A landowner that owns land that abuts a property enrolled in a state safe harbor agreement shall not be required, for purposes of an incidental take permit, to undertake the management activities set forth in the state safe harbor agreement, if all of the following conditions are met:

  1. The neighboring landowner allows CDFW to determine baseline conditions on the property.
  2. The neighboring landowner agrees to maintain the baseline conditions for the duration specified in the safe harbor agreement.
  3. CDFW determines that allowing the neighboring landowner to receive an incidental take permit for the abutting property does not undermine the net conservation benefit determination made by CDFW in the approval of the safe harbor agreement.

CEQA

Issuance of a safe harbor agreement constitutes a discretionary project within the meaning of the Public Resources Code, section 21065 subdivision (c); therefore requiring compliance with CEQA.

Criteria for safe harbor agreement issuance

CDFW may authorize incidental take of a candidate, threatened, or an endangered species with a safe harbor agreement, including a programmatic agreement, if all the following conditions are met:

  1. CDFW receives a complete application containing all of the necessary information.
  2. The take is incidental to an otherwise lawful activity.
  3. CDFW finds that the implementation of the agreement is reasonably expected to provide a net conservation benefit to the species listed in the application. This finding shall be based, at a minimum, upon the determination that the agreement is of sufficient duration and has appropriate assurances to realize these benefits.
  4. The take authorized by the agreement will not jeopardize the continued existence of the species.
  5. CDFW finds that the landowner has agreed, to the maximum extent practicable, to avoid or minimize any incidental take authorized in the agreement, including returning to baseline.
  6. CDFW has established or approved a monitoring program, based upon objective scientific methodologies, to provide information for CDFW to evaluate the effectiveness and efficiency of the agreement program, including whether the net conservation benefits set forth in the agreement are being achieved and whether the participating landowner is implementing the provisions of the agreement.
  7. CDFW has determined that sufficient funding is ensured, for it or its contractors or agents, to determine baseline conditions on the property, and that there is sufficient funding for the landowner to carry out management actions and for monitoring for the duration of the agreement.
  8. Implementation of the agreement will not be in conflict with any existing CDFW-approved conservation or recovery programs for the species covered by the agreement.

Completed safe harbor agreements

2012.  Agriculture and Land Based Training Association, Monterey County, California tiger salamander
2012. Consistency Determination, Kerns Pond, Shasta County, Shasta crayfish

Contact
Ryan Mathis, Senior Environmental Scientist (Supervisor)
Habitat Conservation Planning Branch
California Department of Fish and Wildlife
1416 Ninth Street, Suite 1280
Sacramento, CA 95814
916.651.8711
Ryan.Mathis@wildlife.ca.gov