By Katherine Hart

Senate Bill 448 sponsored by Fran Pavley was signed into law by Governor Schwarzenegger on October 11, 2009. The bill establishes the California State Safe Harbor Agreement Program Act (the “Act”) and adds provisions to the California Fish and Game Code. It will become effective on January 1, 2010.

Background and Purpose

A number of private landowners, public agencies, and tribes, own lands which have high habitat and/or species values. The purpose of the Act is to establish a program that encourages landowners to manage their lands voluntarily in order to conserve, protect, restore and enhance endangered, threatened and candidate species on privately held lands, while relieving the landowners of additional regulatory requirements.

How the Act Will Work

Any owner of land with habitat or species value may submit an application to the Department of Fish and Game (“DFG”) to enter into a safe harbor agreement. Landowners must submit information pertaining to the area and species to be protected or enhanced, the management actions to be undertaken and the timeframe in which they will be implemented, a detailed monitoring program, and any incidental take that may occur as a result of the agreement, among other things. Baseline conditions will be established for the properties in question by the DFG or other approved party. The agreement with landowners to be managed by a program administrator to provide a net conservation benefit (e.g., reduce habitat fragmentations, maintain or increase species’ populations, enhance/restore habitat and buffer protected areas) to those protected or candidate species ascertain to live or have habitat on a landowner’s property.

Key Benefits and Protections for Landowners

In exchange for entering into the agreements, landowners will receive the following benefits and protections:

  • Be permitted to “take” a protected species without obtaining the standard regulatory permit required under the state and/or federal laws subject to a few conditions (e.g., the authorized take will not jeopardize the existence of a species, etc.). (Fish & G. Code, § 2089.6, subd. (b).)
  • Be relieved of any liability for injury or duty of care resulting in access to its property under a safe harbor agreement. (Fish & G. Code, § 2089.20, subd. (d)(2).)
  • Receive protection for any proprietary information submitted for purposes of entering into a safe harbor agreement, subject to limited exceptions. (Fish & G. Code, § 2089.9.)
  • Retain all ownership and control of their properties subject to safe harbor agreements, and protects against public access onto enrolled properties. (Fish & G. Code, § 2089.20, subd. (a).)

Owners of land abutting property subject to a safe harbor agreement can also benefit from such agreement subject to certain conditions. (See Fish & G. Code, § 2080.23.)

The law has a sunset provision of January 1, 2020 and will expire then unless a later enacted statute extends the date.

The Department is expected to issue regulations on how the Act will be implemented in the future. We will update you once the regulations are issued.

With all the environmental protections for habitat and species, landowners have increasingly been deterred from owning or purchasing land with such values. However, with the Safe Harbor Agreement Program Act, landowners will now be able to use their property more freely, while also conserving and enhancing the land’s environmental value.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.