Safe Harbor Agreements Are Anything But Safe
What is a Safe Harbor Agreement? A Safe Harbor Agreement is essentially a permit between government agencies and non-federal property owners regarding the management of species listed under the Endangered Species Act (ESA). In a Safe Harbor Agreement, a property owner agrees to undertake certain actions for the benefit of a protected species. In return, the property owner receives legal immunity for acts ordinarily prohibited by the ESA.
In California, three agencies govern these Safe Harbor Agreements. The U.S. Fish and Wildlife Service (the Service), the National Oceanic and Atmospheric Administration, and the California Department of Fish and Wildlife all maintain Safe Harbor Programs. The federal and state programs are synonymous, with many of these agreements being cross-listed between the three. Monitoring these agreements across the agencies is difficult, especially when none of the agencies maintain an accurate or complete database. This lack of transparency gives little opportunity for public oversight and participation.
The federal Safe Harbor Program was designed in 1995 to institute a “collaborative stewardship approach” to endangered species management. The goal was to garner voluntary cooperation from private property owners who may ordinarily resist governmental regulation. The potential benefits of this program are many. For one, the Service is able to oversee critical habitats it may otherwise not have had access to or even knowledge of. Second, it offers a workable method for carrying out the goals of the ESA. Finally, the Safe Harbor Program has the potential to aid in species recovery. Safe Harbor Agreements create opportunities for species monitoring, conservation, and habitat restoration.
It is the carrot in the equation that is problematic. The assurances offered to property owners as a means of enticing them into these agreements potentially undermine the ESA’s entire purpose, which is to conserve threatened and endangered species and the habitats they depend on. Under a Safe Harbor Agreement, property owners receive permission for the incidental take of species. This means that if actions taken under the Safe Harbor Agreement harm a protected species or its habitat, the property owner is not liable. Additionally, the property owner is assured that no additional land use restrictions will be placed on their property, even if the protected species or habitat begins to suffer. Finally, the property owner is able to return their property to “baseline” at the conclusion of the agreement.
Baseline refers to the state of the property at the onset of the agreement. There are no standardized criteria for determining baseline, but factors may include population estimates, the amount of habitat available, and the quality of that habitat. A return to baseline means that once the Safe Harbor Agreement expires, the property owner can return the property to its previous condition. Essentially, any improvements to the property created under the Safe Harbor Agreement may be reversed. Take, for example, the River Partners Agreement. Over 1,500 elderberry plants (home to the valley elderberry longhorn beetle) are set to be planted during the course of the agreement, but at return to baseline, the property is required to have only a single elderberry bush. That is not to say the property owners will return the land to baseline, but the option is always there.
What, then, is the benefit? The benefit offered by Safe Harbor Agreements is a “net conservation benefit.” A net conservation benefit is the total benefit offered to a species or its habitat offset by any harm caused under the agreement. Benefits may include maintaining or increasing populations, enhancing and restoring habitats, and creating areas for testing. In a recent decision regarding the northern spotted owl, the Ninth Circuit Court of Appeals determined that even an informational benefit may qualify. In addition to the wide degree of interpretation, one issue with net conservation benefits is that they need not help the species at all. Safe Harbor Agreements are not required to actually provide a net conservation benefit. Instead, the Service must only reasonably expect a net conservation benefit prior to issuing the permit.
These many problems create opportunities for property owners to abuse the Safe Harbor Program. Multi-million dollar logging companies like Green Diamond enter into decades-long Safe Harbor Agreements that allow them to get away with actions that would ordinarily be punished under the ESA. Other types of ESA permits are available to these property owners, but none seem to have the same draw as the coveted Safe Harbor Agreement.
Based on available data, well over half of the state’s Safe Harbor Agreements are in Northern California. These agreements affect vulnerable species such as the Northern spotted owl, Humboldt marten, and Coho salmon. EPIC works to protect these and other species from the threats Safe Harbor Agreements may pose.
While Safe Harbor Agreements offer a safe harbor for property owners, the same cannot always be said for the species the program is designed to protect. That’s why EPIC and our partners recently filed a lawsuit challenging a safe harbor agreement on the Shasta River.