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Safe Harbor Agreements

Large-flowered fiddleneck

Large-Flowered Fiddleneck (Amsinckia grandiflora)

Field of yellow blooms
California tiger salamander

California Tiger Salamander (Ambystoma californiense)

Scenic hills

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.

Fish and Game Code sections 2089.2-2089.26 allow CDFW to authorize incidental take of a species listed as endangered, threatened, candidate, or a rare plant, through a Safe Harbor Agreement (SHA) if implementation of the agreement is reasonably expected to provide a net conservation benefit to the species, among other provisions. SHAs are intended to encourage landowners to voluntarily manage their lands to benefit CESA-listed species without subjecting those landowners to additional regulatory restrictions as a result of their conservation efforts. In addition, at the end of the agreement period, participants may return the enrolled property to the baseline conditions that existed at the beginning of the SHA.

California SHAs are analogous to the link opens in new windowfederal safe harbor agreement program and CDFW has the authority to issue a consistency determination based on a federal safe harbor agreement.


Definitions That Apply To Safe Harbor Agreements

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 are determined by CDFW, in consultation with the applicant, and are 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. The most common metric has been a measurement of the habitat. For example, in a stream restoration project to benefit listed salmonids, CDFW may use the miles of occupied stream habitat being restored as the baseline measurement. CDFW 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 a SHA.

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.

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 will work with landowners and CDFW to implement the agreement. The program administrator and CDFW will 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.

How Do I Apply For A Safe Harbor Agreement?

To initiate the Safe Harbor Agreement process, contact the appropriate CDFW Regional Office in the location of the proposed property. A local CDFW Environmental Scientist will help guide the Safe Harbor Agreement application and will maintain contact throughout the process.

What Information Do I Need To Include In The Application?

An applicant must submit all of the following:

  1. A detailed map depicting the land proposed to be enrolled in the agreement.
  2. The common and scientific names of the species for which the landowner requests incidental take authorization.
  3. A detailed description of the landowner’s current land and water use and management practices that affect the covered species, and the habitat of the covered species for which the landowner requests incidental take authorization.
  4. A detailed description of the landowner’s future land and water use and management practices that may affect the covered species, and the habitat of the covered species, for which the landowner requests the incidental take authorization. This description shall be used only for informational and planning purposes.
  5. The proposed duration of the agreement that is sufficient to provide a net conservation benefit to the species covered in the permit and an explanation of the basis for this conclusion.
  6. A detailed description of the proposed management actions and the time-frame for implementing them.
  7. A description of the possible incidental take that may be caused by the management actions and of the anticipated species populations and habitat changes over the duration of the permit.
  8. A detailed description of the proposed monitoring program.
  9. Any other information that the department may reasonably require in order to evaluate the application.

What Are The Benefits Of A Safe Harbor Agreement?

The landowner receives regulatory assurances that they 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.

Other Important Considerations

Funding

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

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.

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.

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.

Is Compliance With The California Environmental Quality Act (CEQA) Required?

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


SHA Consistency Determinations

If a landowner has a link opens in new windowfederal safe harbor agreement authorizing take for a dually listed species, they may request that the Director of CDFW find the federal SHA consistent with CESA. If it is found to be consistent, a SHA consistency determination (SHA CD) is issued and no further authorization or approval is necessary under CESA. 

What Species Are Dually Listed?

SHA Consistency Determination Application Procedures

To initiate the SHA Consistency Determination process, an applicant must notify the Director of the California Department of Fish and Wildlife, in writing, that they have received a federal Safe Harbor Agreement pursuant to the federal Endangered Species Act. The notice must include a copy of the federal Safe Harbor Agreement. There is no fee for SHA Consistency Determination Applications.

Mail consistency determination requests to:

Charlton Bohham, Director
California Department of Fish and Wildlife
1416 Ninth Street, 12th Floor
Sacramento, CA 95814


Completed Safe Harbor Agreements

  • 2016 - Rock Creek, Shasta County, Shasta crayfish
  • 2015 - Rock Creek Upper Pool, Shasta County, SHA Consistency Determination, Shasta crayfish
  • 2014 - Carrington Coast Ranch, Sonoma County, Townsend's big-eared bat
  • 2014 - Fireworks America, San Joaquin County, Large-flowered fiddleneck
  • 2014 - Morrison Ranch, Alameda County, Large-flowered fiddleneck
  • 2012 - Kerns Pond, Shasta County, SHA Consistency Determination, Shasta crayfish
  • 2012 - Agriculture and Land Based Training Association (ALBA), Monterey County, California tiger salamander
Contact
CESA Program
Habitat Conservation Planning Branch
California Department of Fish and Wildlife
1416 Ninth Street, 12th Floor
Sacramento, CA 95814
(916) 654-3820
CESA@wildlife.ca.gov


Habitat Conservation Planning Branch
1416 Ninth Street, 12th Floor, Sacramento, CA 95814
(916) 653-4875