Safe Harbor Agreements

Overview

Covered Species

The following species are eligible for Safe Harbor Agreements:

• Endangered, threatened or candidate species listed under the California Endangered Species Act (CESA)
  • State and/or Federally Listed Animal Species (PDF)
  • State and/or Federally Listed Plant Species (PDF)
• Declining or vulnerable species as defined in Fish and Game Code section 2089.4, including those proposed for listing under the California Endangered Species Act (CESA) or those that CDFW determines may, in the near future, be candidate species or proposed for listing under CESA (e.g., Species of Special Concern)

Take of Fully Protected species cannot be authorized under a Safe Harbor Agreement.

To find out if a covered species is in your area visit the California Natural Diversity Database (CNDDB) page, the BIOS mapping service, or consult with the nearest CDFW Regional Office.

Landowner’s Role

The landowner applies for a SHA and works with CDFW to develop and implement management actions that will provide a net conservation benefit for the covered species.

The landowner maintains and improves baseline conditions throughout the term of the agreement and implements a monitoring program to evaluate the effectiveness of the actions.

Benefits to the Landowner

The landowner receives regulatory authorization for incidental take of covered species that may occur during management of the property enrolled in the SHA.

The landowner may alter or modify their property, even if it results in incidental take of covered species, so long as the baseline conditions are maintained.

If the Covered Species are defined as declining or vulnerable and later become listed as threatened, endangered, or candidate species under CESA, no further authorization or approval is required for incidental take of the species.

Benefits to the Species

The net conservation benefits provided by the SHA result in increased species populations and new or enhanced habitats. The Safe Harbor Agreement Program's collaborative stewardship approach helps ensure the preservation and recovery of California's biodiversity.

Definitions

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.

Program Details

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. 

Safe Harbor Agreement Application Procedures

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. There is no application fee for Safe Harbor Agreements.

An applicant must submit all of the following (Fish & G. Code, § 2089.8):

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.

Federal CDs

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.

Alternatively, paper copies of the required documents can be submitted to:

California Department of Fish and Wildlife
Attn: Director’s Office
P.O. Box 944209
Sacramento, CA 94244-2090