University of FloridaSolutions for Your Life

Download PDF
Publication #WEC358

Safe Harbor Agreement: A Regulatory Assurance under the Endangered Species Act1

Melissa M. Kreye, Elizabeth F. Pienaar, Raoul K. Boughton, and Lindsey Wiggins2

Introduction

The involvement of the private sector is critical for the conservation and recovery of many species, however, the possibility of increased management restrictions on landowners is a challenge to recovery efforts under the Endangered Species Act. A Safe Harbor Agreement (SHA) is a regulatory assurance that encourages landowners to maintain important habitat on their lands by removing the risk of additional regulation in the future (Bean 1998). The following EDIS publication provides Extension agents, decision-makers, and landowners with a basic understanding of a landowner’s obligation and benefits of enrolling in an SHA.

The Endangered Species Act

The purpose of the ESA is to protect and recover critically imperiled species and is jointly administered by the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). Imperiled species are defined as species whose populations or habitats are at risk of being harmed, injured, or destroyed due to changes in habitat, disease, and invasive species. Under the ESA, habitat important for a species' survival and population recovery is classified as critical habitat. Causing harm to a species by altering critical habitat is classified as a type of incidental take (USFWS 2013). Landowners whose management actions or land uses result in a loss of critical habitat may be subject to ESA regulatory penalties (e.g., fines).

Because of possible regulation or increased regulation, some landowners are reluctant to undertake activities that support or attract ESA-listed species onto their properties (Langpap and Wu 2004). To reduce concerns about increased regulation, and thereby encourage the conservation of habitat on private lands, Section 10 of the ESA authorizes the USFWS to provide landowners with regulatory assurances through a Safe Harbor Agreement (USFWS 2013).

How does a Safe Harbor Agreement (SHA) help landowners?

Landowners enrolled in an SHA will not be subject to additional land-management requirements or land-use restrictions, even if the population of a protected species increases on the landowner’s property. At the time the landowner voluntarily enters into an SHA, the existing quantity and quality of habitat and the populations of imperiled species on the property are documented: this is known as the baseline. The landowner agrees to implement species management activities that provide a net conservation benefit to that species. These activities can include those that (1) maintain the baseline or (2) improve habitat conditions or number of species above the baseline. The USFWS agrees not to impose any additional management actions or regulatory penalties on the landowner beyond those agreed to in the SHA. A landowner receives an Enhancement of Survival Permit (ESP) conjunction with the SHA (FWS 2014). The ESP authorizes incidental take of species that may result from actions undertaken by the landowner who has an SHA, as long as the species population remains above the designated baseline.

Landowners are not obligated to maintain improved habitat conditions above baseline once the SHA contract has expired. At the end of the SHA, landowners can choose to reverse conservation actions that increased species populations on their land to the baseline level and return species numbers and the habitat to its condition prior to entering into an SHA. The SHA can be renewed for as long as the landowner and the USFWS mutually agree; however, if the landowner does not renew the agreement, the landowner is no longer protected from ESA regulatory penalties or possible land use restrictions. Figure 1 provides an example of an SHA where acres of important habitat are used to establish the landowner’s baseline responsibility.

Figure 1. 

An SHA is ideal for landowners who (1) want to be recognized for maintaining or increasing habitat for imperiled species on their lands or (2) perceive that the risk of regulation is high on their lands and therefore conclude that entering an SHA will help avoid potential income loss (e.g., they will avoid penalties). The risk of regulation is likely higher for lands with wildlife habitat that is important, or will become important, to the recovery of imperiled species (e.g., lands in a wildlife corridor) (Langpap and Wu 2004).

How does an SHA help the USFWS achieve species recovery goals?

An SHA can help the USFWS meet species recovery goals because it encourages voluntary habitat conservation behaviors and may help increase landowner trust in government wildlife agencies. Moreover, voluntary approaches can help achieve species recovery goals at a lesser cost compared to strict regulatory approaches (Stroup 1997).

Enrolling a large number of landowners in an SHA can provide a net conservation benefit important to the recovery of the listed species. More specifically, SHAs can help reduce habitat fragmentation, maintain existing habitats, provide buffers for protected areas, and provide opportunities to test and develop new habitat management techniques (FWS 2013).

Another important benefit for the USFWS is that the SHA can help address the perverse incentive caused by ESA regulations. A rule that produces behavior opposite to the behavior desired by the creator of the rule is said to provide a perverse incentive. In this case, the regulations sometimes encourage landowners to preemptively alter or remove habitat as the risk of ESA regulatory penalties increases (Langpap and Wu 2004; Lueck and Michael 2000).

Have SHAs been used in Florida?

To date, the SHAs used in Florida have been to protect habitat for the endangered red-cockaded woodpeckers (Picoides borealis). At the present time there are 16 SHAs (on approximately 95,000 acres) in Florida. Participants in these agreements tend to be larger landowners who already engage in land-management practices that benefit the woodpecker as part of their game-species management. The actions of these landowners will likely help with RCW species recovery in Florida. The use of SHAs in North Carolina has already helped to reverse the decline of RCWs and cultivate positive attitudes in landowners towards ESA regulations (Kishida 2001).

Recently, the Florida Panther Recovery and Implementation Team proposed that an SHA be developed for the Florida panther and made available to landowners in south-central Florida. Approval for this proposal is still pending. To learn how an SHA can benefit a specific landowner or to apply for a SHA, the landowner should contact the nearest FWS Ecological Services field office. Many agreements can be developed within 6 to 9 months, although more complex agreements may take longer. For more information about an SHA go to http://www.fws.gov/endangered/landowners/landowners-faq.html.

References

Bean, M. J. 1998. "The Endangered Species Act and private land: four lessons learned from the past quarter century." Environmental Law Reporter News and Analysis 28: 10701–10710.

Kishida, D. H. 2001. "Safe Harbor Agreements under the Endangered Species Act: Are They Right for Hawai'i." U. Haw. L. Rev. 23: 507.

USFWS. 2013. Endangered Species Act. Accessed June 1, 2015 at http://www.fws.gov/endangered/laws-policies/

USFWS. 2014. Enhancement of Survival Permits. Accessed June 29, 2014 at http://www.fws.gov/midwest/endangered/permits/enhancement/index.html

Langpap, C., and J. Wu. 2004. "Voluntary conservation of endangered species: when does no regulatory assurance mean no conservation?" Journal of Environmental Economics and Management 47(3): 435–457.

Lueck, D., and J. A. Michael. 2000. Preemptive habitat destruction under the Endangered Species Act. Available at SSRN 223871.

Stroup, R. L. 1997. "The economics of compensating property owners." Contemporary Economic Policy 15(4): 55–65.

Footnotes

1.

This document is WEC358, one of a series of the Wildlife Ecology and Conservation Department, UF/IFAS Extension. Original publication date December 2015. Reviewed March 2019. Visit the EDIS website at https://edis.ifas.ufl.edu for the currently supported version of this publication.

2.

Melissa M. Kreye, assistant professor of Forest Resource Management, Department of Ecosystem Science and Management, at PennState; Elizabeth F. Pienaar, assistant professor, Wildlife Ecology and Conservation Department; Raoul K. Boughton, assistant professor, Department of Wildlife Ecology and Conservation, UF/IFAS Range Cattle Research and Education Center; and Lindsey Wiggins, Extension agent, UF/IFAS Extension Hendry County; UF/IFAS Extension, Gainesville, FL 32611.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.