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Safe Harbor Agreements

Safe Harbor Agreements Under Development

Dupage County Forest Preserve District for the Hine's Emerald Dragonfly - now available for public review and comment

Explanation of Safe Harbor Agreements

Safe Harbor Agreements are voluntary agreements between the U.S. Fish and Wildlife Service and cooperating non-Federal landowners. They are designed to benefit federally endangered and threatened species by giving landowners assurances that at no future time would the U.S. Fish and Wildlife Service impose restrictions on their land as a result of conservation actions on their part. In other words, these agreements essentially relieve landowners of liability under the Endangered Species Act if conservation practices on their land attract and/or perpetuate federally listed species. To date, nearly three million acres of land have been enrolled in Safe Harbor Agreements, benefiting a variety of listed species.

1. Developing a Safe Harbor Agreement

In general, the steps to developing a Safe Harbor Agreement with the U.S. Fish and Wildlife Service are as follows:

Contact the nearest U.S. Fish and Wildlife Service Ecological Services Field Office and ask to speak to someone about the Safe Harbor Program.
You (the landowner), with the aid of the U.S. Fish and Wildlife Service, must gather some general information. This includes, but is not limited to, a map of the property, proposed management actions, information on the listed species that occur on the property, and any other pertinent information.
We (or appropriate cooperators approved by you) will describe the baseline conditions for the enrolled property in terms appropriate for the covered species. Using the baseline determination, you and our staff will discuss land use objectives, assess habitat quality, and identify any other information needed to develop an agreement that meets the standards of the policy.
Based on all the information you provide, information gathered during site visits, and the FWS's technical assistance, you and our staff (and any other pertinent entity, such as a State fish and game agency) develop a draft Safe Harbor Agreement. The draft agreement would include a monitoring program designed to assess the success of the management practices.
To apply for a permit, you would complete an "enhancement of survival" permit application form, attach the draft Safe Harbor Agreement, and submit them to us. This is your complete application.
After we comply with all applicable ESA provisions (internal section 7 review and public comment period on your permit application), we will issue you a 10(a)(1)(A) permit and finalize the agreement. This permit will allow you to return your property to the baseline conditions at the end of the agreement. If continuation of permitted activities would likely result in jeopardy to covered species, the FWS may, as a last species, to remedy the situation. We may also suspend or revoke a permit for cause in accordance with the laws and regulations in force at the time of such suspension or revocation.

2. Requirements of a Safe Harbor Agreement

Safe Harbor Agreements must:

Specify the species and/or habitats and identify the enrolled property covered by the Agreement;
Describe the agreed upon baseline conditions for each of the covered species within the enrolled property;
Identify management actions that would accomplish the expected net conservation benefits to the species and the agreed upon timeframes for these management actions to remain in effect in order to achieve the anticipated net conservation benefits;
Describe the anticipated results of the management actions and any incidental take associated with the management actions;
Incorporate a notification requirement, where appropriate and feasible, to provide either Service, or Services jointly, or appropriate State agencies with a reasonable opportunity to rescue individual specimens of a covered species before any authorized incidental taking occurs;
Describe the nature of the expected incidental take upon termination of the Agreement (i.e., back to baseline conditions);
Satisfy other requirements of section 10 of the Act; and
Identify the responsible parties that will monitor maintenance of baseline conditions, implementation of terms and conditions of the Agreement, and any incidental take as authorized in the permit.

3. Outline of a SHA

INTRODUCTION
LIST OF COVERED SPECIES
BACKGROUND
DESCRIPTION OF ENROLLED LANDS
BASELINE DETERMINATION
RESPONSIBILITIES OF THE PARTIES
NOTIFICATION REQUIREMENTS
MANAGEMENT ACTIVITIES FOR COVERED SPECIES
RETURN TO BASELINE
NET CONSERVATION BENEFIT
CHANGED CIRCUMSTANCES
AGREEMENT DURATION
TAKE
REPORTING AND MONITORING
FUNDING
MODIFICATIONS
ADDITIONAL MEASURES
REFERENCES CITED

4. Frequently Asked Questions

How Do Safe Harbor Agreements Work?: In a Safe Harbor Agreement, the landowner agrees to maintain, create, restore or improve habitat for endangered or threatened species. The U.S. Fish and Wildlife Service, working with the landowner, will establish a baseline condition (usually a number) for each species and determine whether the proposed actions will result in a net conservation benefit. The landowner may then incidentally take listed species, as long as baseline conditions are maintained. Taking below the baseline is sometimes permitted if the taking does not have a significant adverse effect on the baseline and is likely to provide a long-term benefit on the baseline.
Who Can Get One?: Any non-Federal landowner can request the development of a Safe Harbor Agreement. These agreements are between the landowner and the U.S. Fish and Wildlife Service or between the U.S. Fish and Wildlife Service and other stakeholders (such as State natural resource agencies, Tribal governments, local governments, conservation organizations, businesses). Even if a landowner and the U.S. Fish and Wildlife Service develop an Agreement, other stakeholders, at the landowner's request, can participate. 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.
How long does it take to develop a Safe Harbor Agreement?: Many Safe Harbor Agreements can be developed within 3-4 months. More complex Safe Harbor Agreements may take 6-12 months, depending on the species' ecology, size of the project, number of parties to the Safe Harbor Agreement, and funding available for the Safe Harbor program.
What if I sell or transfer ownership of my land? Does the Safe Harbor Agreement go with the sale?: Yes. If you sell or give away your enrolled lands, we will honor the Agreement, providing the new owner signs the original Agreement or a new mutually agreeable one.
Can Safe Harbor Agreements be Renewed?: Yes, Agreements can be renewed for as long as the landowner wishes and as long as the landowner follows the terms of the Agreement.
What Are Statewide Safe Harbor Agreement?: Statewide Agreements authorize individual States to implement Safe Harbor programs. The U.S. Fish and Wildlife Service provides an Enhancement of Survival permit to the State, who then can then offer individual landowners "certificate of inclusion" (which make them part of the Permit). Several southern States have implemented statewide Safe Harbor Agreements for the red-cockaded woodpecker.
What are "No Surprises" assurances?: The U.S. Fish and Wildlife Service will provide assurances that, when the SHA agreement 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 U.S. Fish and Wildlife Service 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.

U.S. Fish and Wildlife Service