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WINTER 2010

Safe Harbor Agreements Aimed at North State Farmers and Ranchers Draws Skepticism

Safe Harbor Agreements (SHA) have been around for years, but two recent proposed agreements are aimed right at Sacramento Valley farmers and ranchers. The first agreement targeted rangeland in Shasta, Tehama, Butte and Glenn Counties and was originally supported by California Rangeland Conservation Coalition, but criticism by the Glenn County Rangeland Association and local ranchers has caused the proposal to be re-evaluated.

Swainson's hawkOn the heals of the rangeland proposal is another SHA for a 222 - mile stretch of the Sacramento River. The Sacramento River SHA is being proposed by none other than the Sacramento River Conservation Area Forum (SRCAF). Only recently has light been shed on these two proposals as many come to question the impacts to private landowners.

A SHA is a voluntary agreement entered into by private landowners with state and federal resource agencies. According to the law, SHA’s “encourages landowners to manage their land to benefit threatened and endangered species and not be subject to additional regulatory restrictions for their conservation efforts”. Many might think “this sounds” like a good idea, but other ranchers and farmers are questioning what they are getting by signing the agreement.California red-legged frog

In order to sign an agreement, an inventory of the private property must be done to establish a baseline of existing habitat and endangered species. Once the baseline is established a landowner can enter into an SHA to modify and alter their property for the benefit of the species. The agreement provides no regulatory relief for landowners with respect to existing endangered or threaten species currently on their land before the SHA is in effect.

So, if a landowner makes habitat improvements and species establish beyond the baseline, the landowner is said to be able to return their land to the baseline condition, if proper notice is given, and not be in violation of the Endangered Species Act. But this leaves one question, what if the baseline is not maintained? What if the species on the land before the SHA was signed are no longer present? Does the landowner have to mitigate?

Giant garter snakeUncertainties with the new SHA law arise because for decades environmental groups have used the ESA to sue anyone and everyone whom they think may, or has violated the ESA, and in the end the ESA usually wins. Furthermore, there is no legal precedence and a third party could still choose to litigate if they so choose.

According to Michael Bean at the Environmental Defense Fund, “among the more self-defeating ideas embraced by at least some environmental groups is that landowners who receive public cost-sharing assistance to carry out habitat improvements should not be allowed to enter into safe harbor agreements with respect to those improvements. Thus, FWS’s Partners for Fish and Wildlife Program, USDA’s Wildlife Habitat Improvement Program, and other similar cost-sharing programs would, under this suggestion, be off-limits to landowners seeking to enter into safe harbor agreements.”
As you can tell, Bean is in favor of the SHA and sees that there are ways that they are being undermined

In conclusion, landowners must assure they are fully aware of potential impacts before signing onto a SHA. It seems hard to believe that landowners would be able to break the law and remove habitat for endangered species and not end up in court. ■

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