Safe harbor agreements for private landowners

              U.S. Fish & Wildlife Service

Safe Harbor Agreements for

Private Landowners

Safe Harbor Agreements are voluntary

arrangements between the U.S. Fish and

Wildlife Service (FWS) or the National

Oceanic and Atmospheric

Administration–Fisheries and

cooperating non-Federal landowners.

This policy’s main purpose is to

promote voluntary management for

listed species on non-Federal property

while giving assurances to participating

landowners that no additional future

regulatory restrictions will be imposed.

The agreements benefit endangered

and threatened species while giving

landowners assurances from additional

restrictions.

Following development of an

agreement, the FWS will issue an

“enhancement of survival” permit, to

authorize any necessary future

incidental take to provide participating

landowners with assurances that no

additional restrictions will be imposed

as a result of their conservation actions.

Preserving Habitat

Because many endangered and

threatened species occur primarily or

exclusively on privately owned

property, we believe it is critical to

their protection to involve private

landowners in their conservation and

recovery. Many property owners,

however, are concerned about land use

restrictions that may occur if listed

species colonize on their property or

increase in numbers as a result of land

management. Thus they often avoid or

limit land and water management

practices that could enhance and

maintain habitat.

Landowner Initiatives

Any non-Federal landowner can

request the development of a Safe

Harbor Agreement. These agreements

are between the landowner and the

FWS or between the FWS and other

stakeholders (such as State natural

resource agencies, Tribal governments,

local governments, conservation

organizations, businesses). Even if a

landowner and the FWS develop an

agreement, other stakeholders, at the

landowner’s request, can participate in

many ways in the development phases

of the agreement. However, the

assurances only apply to the

participating landowners and for lawful

activities within the enrolled lands.

Non-Federal landowners have been

seeking and insisting on assurances that

their voluntary actions will not result in

future land-use restrictions. This policy

could help all non-Federal landowners

interested in using their lands to aid

conservation but who also fear

subsequent restrictions on land use.

No Surprises

The FWS will provide assurances (by

issuing an “enhancement of survival”

permit) that, when the agreement’s

term ends, the participating landowner

may use the property in any otherwise

legal manner that doesn’t move it below

baseline conditions determined in the

agreement. These assurances operate

with the enrolled lands and are valid for

as long as the participant is complying

with the Safe Harbor Agreement and

associated permit.

In return for the participant’s efforts,

the FWS will authorize incidental take

through the section 10 (a)(1)(A) process

of the Endangered Species Act (ESA).

This permit would allow participants to

take individual listed plants or animals

or modify habitat to return population

levels and habitat conditions to those

agreed upon as baseline.

Enhancing Wildlife

Before entering into a Safe Harbor

Agreement, we must make a written

Aplomado falcon. Photo by Steve

Bentsen

finding that the covered endangered or

threatened species will receive a “net

conservation benefit” from the

agreement’s management actions.

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.

The finding must clearly describe the

expected net conservation benefits and

how the FWS 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, wherethey are undertaken, and theirduration.Starting the ProcessGenerally, the steps are:1. Contact the nearest FWS EcologicalServices field office and ask to speak tosomeone about the Safe HarborProgram.2. You (the landowner), with the aid ofthe FWS, must gather some generalinformation. This includes, but is notlimited to, a map of the property,proposed management actions,information on the listed species thatoccur on the property, and any otherpertinent information.3. We (or appropriate cooperatorsapproved by you) will describe thebaseline conditions for the enrolledproperty in terms appropriate for thecovered species. Using the baselinedetermination, you and our staff willdiscuss land use objectives, assesshabitat quality, and identify any otherinformation needed to develop anagreement that meets the standards ofthe policy.4. Based on all the information youprovide, information gathered duringsite visits, and the FWS’s technicalassistance, you and our staff (and anyother pertinent entity, such as a Statefish and game agency) develop a draftSafe Harbor Agreement. The draftagreement would include a monitoringprogram designed to assess the successof the management practices.5. To apply for a permit, you wouldcomplete an “enhancement of survival”permit application form, attach thedraft Safe Harbor Agreement, andsubmit them to us. This is yourcomplete application.6. After we comply with all applicableESA provisions (internal section 7review and public comment period onyour permit application), we will issueyou a 10(a)(1)(A) permit and finalizethe agreement. This permit will allowyou to return your property to thebaseline conditions at the end of theagreement.If continuation of permitted activitieswould likely result in jeopardy tocovered species, the FWS may, as a lastresort, revoke the permit. Prior torevocation, the FWS would exercise allpossible measures, including offering topurchase the property or relocate thespecies, to remedy the situation. Wemay also suspend or revoke a permit forcause in accordance with the laws andregulations in force at the time of suchsuspension or revocation.Determining a BaselineWe will describe the baseline of theenrolled property in terms appropriatefor the target or covered species, such asnumber and location of individuals, if itcan be determined. Probably the mostcommon method will be a measurementof the habitat. For example, in a streamrestoration project to benefit listedstreamside songbirds, we may use themiles of occupied stream habitat beingrestored as the baseline measurement.We will also use other information, suchas habitat characteristics that supportthe covered species and any otherinformation that helps to document thecurrent conditions.TimelineMany agreements can be developedwithin 3-4 months. More complexagreements may take at least 6-7months. It depends on a number offactors including:■the species’ ecology,■size of project,■number of parties to the agreement,■state of scientific knowledgeregarding the species, and■funding available for the SafeHarbor program.Public InvolvementAs with other similar ESA permits, wewill publish a notice in the FederalRegister when we receive the permitapplication. We will announce receiptand availability of the application andagreement. We will accept and considercomments from the public beforemaking a final decision on issuance ofthe permit.If a non-covered listed species or a newlylisted species occupies the enrolledlands, the participant can request anamendment to the agreement and/orthe permit to add the species. The FWSand the participant will agree on theenhancement or maintenance actionsfor the newly covered species, baselineconditions, and a net conservationbenefit to that species. We would revisethe permit and agreement to addressthe presence of additional listed speciesin much the same way as the speciescovered in the original agreement.Selling the LandIf you sell or give away your enrolledlands, we will honor the agreement,providing the new owner willingly signsthe original agreement or a newmutually agreeable one.Renewing the AgreementThese agreements can be renewed foras long as the landowner wishes andfollows its terms.Statewide AgreementStatewide individual States to implement SafeHarbor programs. We provide a permitto the State, which can then offerindividual landowners authorizationsthrough a “certificate of inclusion.”This has tremendous potential forefficiently providing assurances to non-Federal landowners. These“programmatic” agreements can beprovided to other groups, such as localgovernment or non-governmentalconservation organizations. Statewideagreements have been developed forthe red-cockaded woodpecker in Texasand South Carolina.U.S. Fish and Wildlife FWSEndangered Species Program703/358-2105http://endangered.fws.govFebruary 2004agreements authorize