Safe Harbor

From the time it was created in the spring of 1995, the Safe Harbor program has shown that innovative, practical solutions to environmental problems really work.

The Safe Harbor concept was developed by Environmental Defense and the U.S. Fish and Wildlife Service to encourage private landowners to restore and maintain habitat for endangered species without fear of incurring additional regulatory restrictions.

As of late 2006, nearly four million acres of land in states across the country have been enrolled in over three dozen Safe Harbor Agreements. A variety of endangered and threatened animals and rare habitats are the beneficiaries.

Conservation makes economic sense

Conservation comes naturally to many landowners. America's farmers, ranchers, and other landowners know that if they exhaust the soil, abuse the land, or pollute the waters, their fields, pastures, streams, and woodlots will become less productive. So, for generations, they have tried to be good stewards.

Many landowners have also worked diligently to attract wildlife to their property. Whether because they enjoy hunting, fishing, or just watching and listening, most landowners are happy to share their land with wildlife. Indeed, the chance to have interesting plants and animals close by has long been one of the real joys of land ownership.

Creating incentives so landowners welcome wildlife

Today, however, some of these landowners are wondering whether they should keep the welcome mat out for wildlife. It's not because they no longer enjoy wildlife, but because they fear that the presence of some animals -- especially endangered species -- could restrict what they can do with their land.

There is an unfortunate irony to this. Most endangered species will need more and better habitats if they are to recover, and who better than America's landowners to provide those places? Yet if landowners believe that creating these habitats threatens their own future, they are not likely to do so. And who can blame them?

A lot of ideas have been put forth to address this dilemma. These web pages explore one very effective and flexible approach: Safe Harbor agreements.

All sorts of landowners are taking part in these easy-to-negotiate agreements, including farmers, forest landowners, resort owners, and even residential and corporate landowners. Together, they are making hundreds of thousands of acres of privately owned land available to America's disappearing wildlife and are doing so without new government regulations.

While Safe Harbor agreements are not appropriate in every situation nor will they solve every problem faced by landowners whose property is home to endangered species. But they can solve some important ones and, in doing so, assure landowners that their continued stewardship won't lead to land-use restrictions.

What is a Safe Harbor agreement?

The basic idea behind a Safe Harbor agreement is that people who do good deeds shouldn't be punished for doing them. And so, in a Safe Harbor agreement, a landowner commits to doing a "good deed" for endangered wildlife-usually by restoring or enhancing habitats for endangered species-and the government pledges not to "punish" the landowner for doing that good deed. This may seem like such a sensible idea that there shouldn't be any need to enter into an agreement to accomplish it. But, actually, there is.

The reason is that under federal law (Endangered Species Act), and sometimes under state law, the presence of an endangered species on a property may result in restrictions on activities undertaken on that land that may be harmful to that species. Thus if landowners were simply to restore wildlife habitats on their property, and those habitats became homes to endangered animals, they might find themselves in a predicament. A landowner might, for example, have to apply for a permit to cut the stand of trees he planted, to drain the wetland he created, or to convert the prairie he restored into productive cropland.

Rewarding landowners who do the right things

A Safe Harbor agreement avoids dilemmas like these. It assures landowners that if they do what they have agreed to do (e.g., plant the stand of trees, create the wetland, or restore the prairie), they won't incur any new restrictions on the use of the land if their actions result in endangered species taking up residence. That is, they are free to develop that land, even if endangered species have shown up there in the meantime. Note, however, that Safe Harbor agreements don't affect any preexisting restrictions that may apply to a property as a result of endangered species already living there. This is an important point for landowners to understand, and it is discussed in greater detail elsewhere in this handbook.

Safe Harbor agreements are a relatively new conservation tool and have never been formally tested in the courts. However, since the first Safe Harbor agreement was developed in 1995 to protect red-cockaded woodpeckers in the Sandhills of North Carolina, the idea has been praised by many landowner and environmental groups alike. In an arena where controversy has been all too common, Safe Harbor agreements to protect endangered species have generated uncommon enthusiasm.

Safe Harbor agreements come in two basic forms

One is an individual agreement between a landowner and the federal agency responsible for conserving the species (the agency is usually the U.S. Fish and Wildlife Service, but for some fish species is the National Marine Fisheries Service). The landowner agrees to do something beneficial for endangered species in exchange for a guarantee of being subject to no additional regulatory restrictions related to the newly restored or enhanced habitat.

The other is an "umbrella" agreement. In this type of agreement, an intermediary (which can be a state fish and game agency, state or federal agricultural agency, or even a private conservation organization) develops a Safe Harbor program for a specific area, such as a county or group of counties. Once the Fish and Wildlife Service or the Marine Fisheries Service approves that program, the intermediary works with individual landowners to develop written agreements that are covered by the intermediary's umbrella agreement. The result for the landowners is exactly the same-they can now restore habitats for endangered species without fear of new regulations-but much of the red tape is handled by the intermediary that holds the permit.

Posted: 09-Jan-2006; Updated: 16-May-2008