California Safe Harbor Agreement Program Act

California has a number of formal acts in statute. Fish and Game Code Division 3, Chapter 1.5, Article 3.7 provides the California State Safe Harbor Agreement Program Act, which is contained in Section 2089.2 to 2089.25. Article 3.7 was added in 2009 by Chapter 184.

Section 2089.2 names the Act. In addition, the purpose of this article is to establish a program that will encourage landowners to manage their lands voluntarily to benefit endangered, threatened, or candidate species, or declining or vulnerable species, and not be subject to additional regulatory restrictions as a result of their conservation efforts.

Section 2089.4 provides definitions for the following terms: “agreement”; “baseline conditions”; “declining or vulnerable species”; “department”; “landowner”; “management actions”; “monitoring program”; “net conservation benefit”; “programmatic agreement”; “qualified person”; and, “return to baseline.”

Section 2089.5 requires the department, to the maximum extent practicable, to prioritize the review of, and decision to approve, an agreement if the property proposed to be enrolled in the agreement is encumbered by a conservation easement that requires a permanent commitment to protect, restore, and maintain habitat conditions, provided that the department finds that practices consistent with the conservation easement can reasonably be expected to provide a net conservation benefit to the species listed in the application.

If the property proposed to be enrolled in an agreement is subject to a conservation easement, the department, to the maximum extent practicable, is required to rely on the conservation easement to fulfill the requirements of existing law. This section only applies to agreements where a majority of the property is forestland.

Section 2089.6 authorizes the department to engage in acts that are or may become otherwise prohibited through an agreement, including a programmatic agreement, if all of the eight specified conditions are met.

Section 2089.7 provides that the department may authorize the taking of the Owens pupfish in the Owens River watershed if the take is authorized under an agreement pursuant to this article. Section 2089.8 requires a landowner to submit nine types of specified documents.

Section 2089.9 provides a definition of “proprietary information.” Proprietary information received by the department is not public information, and the department cannot release or disclose the proprietary information to any person, including any federal, state, or local governmental agency, outside of the department. However, the department may release or disclose proprietary information received to specified entities under the certain circumstances.

Section 2089.10 specifies that, if an agreement has been approved and the department finds that the agreement is being properly implemented, the department is required to allow the landowner to alter or modify the enrolled property, even if that alteration or modification will result in the incidental take of a listed species, to the extent that the alteration or modification returns the species to baseline conditions.

Section 2089.12 provides that, unless the department determines that it is inappropriate to do so based on the nature of the management actions being proposed, the species listed in the permit, or other factors, the agreement must require that the landowner provide the department with at least 60 days’ advance notice of any specified actions.

If the department receives any notice, the landowner is required to provide the department, its contractors, or agents with access to the land or water for purposes of safely removing or salvaging the species.

Section 2089.14 provides that an agreement may be amended with the mutual consent of the landowner and the department.

Section 2089.16 specifies that, 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 is required to (a) assume the existing landowner’s duties under the agreement, (b) enter into a new agreement with the department, or (c) withdraw from an existing agreement under the terms provided in the agreement, as approved by the department.

Section 2089.18 requires the suspension and revocation of the agreement to be governed by suspension and revocation regulations adopted by the department.

Section 2089.20 provides that this section does not provide the public a right of entry onto the enrolled land or water. The landowner must provide the department, its contractors, or agents with access to the land or water proposed to be enrolled in the agreement to develop the agreement, determine the baseline conditions, monitor the effectiveness of management actions, or safely remove or salvage species proposed to be taken.

The department is required to provide notice to the landowner at least seven days before accessing the land or water. The notice must identify each person selected by the department, its contractors, or agents to access the land or water.

Notwithstanding any other law, the landowner is not liable for any injury, and does not owe a duty of care, to the department, its contractors, or agents resulting from any act or omission.

Section 2089.22 provides that, if a federal safe harbor agreement, or a federal candidate conservation agreement with assurances, has been approved pursuant to applicable provisions of federal law and the federal agreement contains species that are endangered, threatened, candidate, or declining or vulnerable species pursuant to this chapter, no further authorization or approval is necessary under this article for any person authorized by that federal agreement to take the species identified in and in accordance with the federal agreement, if that person and the department follow all of the procedures specified, except that the determination of consistency must be made by the department based only on the issuance criteria contained in this article.

Section 2089.23 specifies that a landowner that owns land that abuts a property enrolled in a state safe harbor agreement cannot be required, for purposes of an incidental take permit, to undertake the management activities set forth in the state safe harbor agreement, if all of the four specified conditions are met.

Section 2089.24 requires the department, for informational purposes, to maintain a list of qualified persons who have worked with the department on an approved agreement, and persons, entities, and organizations serving as program administrators for approved agreements.

Section 2089.25 provides that the department may promulgate regulations to implement this article.