Safe Harbor Agreements

This section provides term definitions relevant to the Safe Harbor Agreement program. For more information, see Fish and Game Code sections 2062, 2067, 2068, and 2089.4.

Incidental take

Hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill, as it may occur incidentally to an otherwise lawful activity.

Endangered, threatened, candidate, declining, or vulnerable species

Those species currently listed under CESA, those proposed for listing, or those that may, in the near future, be candidate species or proposed for listing under CESA.

Landowner

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.

Baseline conditions

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. The most common metric has been 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.

Net Conservation Benefit

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 SHA, 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.

Return to baseline

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.

Programmatic agreement

A SHA 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.

This section provides additional context and considerations for the Safe Harbor Agreement program. For more information, see Fish and Game Code section 2089.2-2089.25.

Funding – The funding assurance requirement for SHAs differs from that of Incidental Take Permits (Fish and Game Code section 2081(b)). For SHAs, 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 – Information received by CDFW and clearly marked as proprietary information is not public information. 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 SHA 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 SHA.

Timeline – While there are no regulatory timelines for completing a Safe Harbor Agreement, the process could take as little as 3-5 months. Factors that may extend processing timelines include CDFW staff availability, complexity in project scope, the mechanism and timing of funding, covered species’ ecology, or CDFW’s role as CEQA lead agency.

CEQA Compliance - Issuance of a SHA constitutes a discretionary project within the meaning of the Public Resources Code, section 21065 subdivision (c); therefore requiring compliance with the California Environmental Quality Act (CEQA). Thus, an environmental document must be prepared to analyze the impacts of activities included in the SHA unless the activities qualify for a CEQA exemption.

Neighboring Landowners - A landowner who owns land that abuts a property enrolled in a SHA shall not be required, for purposes of an incidental take permit, to undertake the management activities set forth in the SHA, 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 SHA.
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 SHA.

Notification Requirements - The landowner must provide 60 days' notice to CDFW when they anticipate that incidental take may occur, if they intend to return to baseline at the end of the agreement, or if they plan to transfer or alienate their interest in the land or water.

Amendments - Agreements can be amended at any time with the mutual consent of the landowner and CDFW.

To determine project eligibility and avoid delays, CDFW highly recommends pre-consultation with Regional staff prior to submitting a consistency determination request.

Federal Safe Harbor Agreements

The California Safe Harbor Agreement Program is comparable to the federal Safe Harbor Agreement Program. This allows for the development of joint state/federal Safe Harbor Agreements to cover species that are both state and federally-listed.

Consistency Determinations

If a landowner has a federal Safe Harbor Agreement authorizing take for a dually listed species, they may request that the Director of CDFW find the federal SHA consistent with California State Safe Harbor Agreement Program Act. If it is found to be consistent, a SHA consistency determination (CD) (Fish & G. Code, §§ 2089.22 & 2080.1) is issued and no further authorization or approval is necessary under CESA.

SHA Consistency Determination Request Procedures

To initiate the SHA Consistency Determination process, an applicant must notify the Director of the California Department of Fish and Wildlife 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 requests.

Electronic copies (i.e., PDFs) of the required documents may be submitted to CDFW through the EPIMS Document Repository. For more information visit the EPIMS web page and follow the given instructions.

Hard copy consistency determination requests must be submitted to the local CDFW Regional Office.

CDFW Photo

In Siskiyou County, the conservation ranching ethics of the Hart Family provide enhanced habitat quality and connectivity for coho salmon, northern spotted owl, and gray wolf. Voluntary conservation actions include provision of enhanced instream flow through reduced surface water diversions in the Little Shasta River. In addition, voluntary management actions will protect rare and sensitive habitat types such as creek headwaters, wet meadows, mature forest reserves, aspen stands, and montane hardwoods. No timber harvesting, vegetative management, animal grazing, road building, or other construction will occur within these sensitive habitats, except as needed to achieve habitat management goals for these specific areas.

USFWS Photo

In Shasta County, a collaboration among landowners, utility companies, CDFW, and U.S. Fish and Wildlife Service resulted in permanent, year-round, protected habitat for the endemic Shasta crayfish. This species was imperiled by non-native crayfish predators and competitors in a reservoir environment, but through voluntary conservation efforts was successfully reintroduced to isolated pools. Specific avoidance and minimization actions are taken during recreational use and land and water management activities to provide a net conservation benefit supporting the recovery of this endemic species.

CDFW Photo

In Tehama and Plumas Counties, recruitment and retention of mature forests adjacent to montane meadows will enhance nesting and foraging habitat for great gray owls in the southernmost portion of their range. Conservation actions on private timberlands include reduced timber operations and human activity in sensitive habitats, development of complex forest structures to maintain adequate canopy cover, active restoration of meadows to reduce conifer encroachment, and reduction of fuel buildup to limit wildfire potential.

CDFW Photo

In San Joaquin and Alameda Counties, recovery efforts for the large-flowered fiddleneck require collaboration from private landowners as much of the suitable habitat occurs exclusively on privately-owned land. When managed appropriately, cattle grazing can be compatible and even beneficial for the large-flowered fiddleneck, a species that prefers exceptionally steep, north-facing slopes. Multiple Safe Harbor Agreements supported the propagation and introduction of this species to ten sites within its historic range among rolling grasslands interspersed with scrub and oak/juniper savanna to support species recovery.

DOI Photo

In San Bernardino County, restoration of the channel complexity in Plunge Creek will improve fluvial processes in the historic floodplain. These actions will improve groundwater recharge and enhance habitat for San Bernardino kangaroo rat and Santa Ana River woolly-star. Nearby removal of non-native grasses will also benefit slender-horned spineflower.