Safe Harbor Agreements

By Michael J. Bean, J. Peter Jenny, and Brian van Eerden

Like a mirage that recedes into the distance as one approaches it, the recovery of many endangered species is likely to be an unreachable goal without the active cooperation of private land owners. Ironically, however, the stringent requirements of the Endangered Species Act have sometimes made it harder to get that cooperation. Fearing new restrictions on the use of their land, many landowners have been reluctant to do things that would attract endangered species to their property or increase the numbers of those already there. Some have even practiced “defensive management,” preemptively destroying habitat to prevent endangered species from later occupying it. The consequence has been that strict regulatory controls intended to protect rare species have prompted private landowners to do the exact opposite of what is needed to help these species.

Non-governmental conservation organizations are beginning to discover that safe harbor agreements, a new tool in the conservationist’s toolbox, can overcome this problem. These agreements assure a landowner who commits to carry out activities expected to benefit an endangered species that no added Endangered Species Act restrictions will be imposed on the landowner as a result. They effectively “freeze” a landowner’s Endangered Species Act responsibilities at their current level for a particular species if he or she agrees to restore, enhance, or create more habitat for that species or do other things to benefit it. They do not, however, eliminate any restrictions resulting from the presence of a species on the property when the agreement is entered into (the landowner’s “baseline” responsibilities). Most safe harbor agreements are entered into between a landowner and a state or federal agency. In a few cases, however, private conservation organizations have taken on the role usually assumed by a governmental agency, finding landowners willing to carry out actions beneficial to endangered species and entering into agreements with those landowners. The safe harbor assurance is extended to the landowner through a permit issued by the U.S. Fish and Wildlife Service to the non-governmental intermediary. This paper describes three recent examples of this practice and discusses some of the lessons learned from this experience. In each case, non-governmental organizations took the initiative to catalyze positive conservation actions by private landowners. These initiatives highlight an important new function that non-governmental organizations can perform to further the conservation of rare species, supplementing traditional functions such as land acquisition, captive breeding, legal advocacy, and public education.

The Peregrine Fund and the Northern Aplomado Falcon

When Spanish explorers arrived in the American Southwest, the northern aplomado falcon (Falco femoralis septentrionalis) must have been a very common sight. By the early twentieth century, however, this denizen of dry grasslands had been greatly reduced in numbers due to habitat loss and shooting. Pesticides probably dealt the final blow. The last known successful nesting in Texas took place in 1941. Eleven years later, in New Mexico, the last known nesting in the United States occurred. In the ensuing decades, there were only sporadic sightings reported, probably of birds venturing north from Mexico, where the species still survived.

With the elimination of DDT and similar pesticides in the 1970s, it became possible to contemplate the eventual reestablishment of the falcon in the United States. With that end in mind, in 1982 The Peregrine Fund began a captive breeding program using birds from Mexico. Although the falcon is extremely difficult to breed in captivity, three years later there were enough falcons that biologists could begin experimental releases. The initial release site was on privately owned property, the giant King Ranch in Kleberg County, Texas. Within days, two of the four birds released there were killed by great horned owls (Bubo virginianus). Subsequent releases on nearby Laguna Atascosa National Wildlife Refuge had more promising initial results as release techniques were modified to better suit the demanding conditions unique to the south Texas brush country.

Reintroduction efforts became further complicated when the northern aplomado falcon was listed as an endangered species in February 1986. Local landowners feared that the release of endangered birds on the nearby refuge would lead to new restrictions on farming activities, a fear that was confirmed when the Environmental Protection Agency (EPA) signaled its intention to prohibit several pesticides widely used on cotton in the area. Eventually, local farmers, EPA, and the Fish and Wildlife Service reached an understanding on the pesticide issue, but the fears generated by that experience and by other endangered species controversies then roiling Texas made landowners extremely wary about allowing their land to be used for reintroduction purposes.

Landowners in south Texas, like most people that still work the land, are passionate about wildlife. Ordinarily, they would be enthusiastic about the possibility of restoring a bird like the northern aplomado falcon on their land. Nevertheless, they were reluctant to allow Peregrine Fund personnel to release and monitor birds on their property because of fear that along with the birds would come a new set of regulatory restrictions. As a result, between 1985 and 1996, releases were limited to Laguna Atascosa and Matagorda National Wildlife Refuges and to a single, privately owned ranch.

Since 97 percent of Texas is private property, finding additional release sites on non-public land became critical to the recovery of this species. Successfully establishing a new population of falcons was likely to require the release of hundreds of birds. The same release sites could not be used year after year because the released falcons became extremely aggressive toward other falcons released within their territory as they matured and formed pairs. Moreover, released birds did not necessarily disperse widely from their release sites; contrary to expectations, birds released on Matagorda Island stayed there, limiting future introduction efforts on the island. Finally, it was important to the success of the effort to be able to recapture released birds periodically to test for pesticide levels in their blood. Without the cooperation of area landowners, this vital aspect of the release program could not be accomplished. Simply put, there was not enough public land, particularly not enough federal land, to recover the species.

Unfortunately, there was no way to reassure private landowners that they would not have to curtail ongoing activities if they allowed birds to be released on their land. The Peregrine Fund saw a way out of this dilemma when its staff learned about the first endangered species safe harbor program developed for the red-cockaded woodpecker (Picoides borealis) in the Sandhills of North Carolina in 1995. Immediately, the Fund set to work designing a safe harbor program of its own. Under this program, landowners who agreed to allow their land to be used for reintroduction purposes could be assured that no new restrictions would be imposed on them as a result of the presence of the falcon. In 1996, the program became the third safe harbor program to be approved by the Fish and Wildlife Service.

With the Service’s approval in place, The Peregrine Fund gradually found that doors formerly closed to it were now beginning to open. The assurances offered by the safe harbor program made it possible for landowners to participate in an endangered species recovery effort on their own land without fear that the presence of that species would restrict their ongoing activities. The fact that it would be Peregrine Fund personnel working on their land rather than federal agents was also extremely important to many landowners. In two years, more than a million acres of privately owned land were enrolled in the program, including land on several sizeable ranches and land owned by the Brownsville Navigation District and by the Welder Wildlife Foundation.

The participation of private landowners through the safe harbor program has been key to the success of The Peregrine Fund’s reintroduction efforts thus far. As of the spring of 2000, there were about thirty nesting pairs of northern aplomado falcons in Texas, half the recovery plan goal of sixty pairs necessary to reclassify the species from endangered to threatened. Significantly, about half of these are on properties enrolled in the safe harbor program. The safe harbor program has helped restore a once vanished species to the landscape of south Texas, and it has done so without the rancor and controversy that has sometimes accompanied reintroduction efforts of other species elsewhere. As a result, The Peregrine Fund is now exploring the possibility of using safe harbor agreements to restore the falcon to west Texas and New Mexico as well.

The Nature Conservancy and the Red-Cockaded Woodpecker

Despite thirty years of protection as an endangered species, the red-cockaded woodpecker has nearly disappeared from the state of Virginia. By the mid-1990s, fewer than twenty of these birds remained, virtually all of them on a single tract of old-growth pine in Sussex County. In 1998, The Nature Conservancy acquired the tract from the Hancock Timber Resources Group in an effort to stave off what appeared to be the inevitable extinction of the bird in Virginia.

The Conservancy’s acquisition, called the Piney Grove Preserve, was just over 1,500 acres in size. Because each pair of woodpeckers needs about 200 acres of foraging habitat, the Preserve was simply too small to sustain a population of woodpeckers likely to persist over the long term. As a result, the Conservancy determined early on that an essential part of its conservation strategy would be to encourage neighboring landowners to manage their forest land compatibly with the needs of the woodpecker. A useful mechanism for doing that, it concluded, was to use safe harbor agreements. The Conservancy was quite familiar with the value of safe harbor agreements in enlisting landowner cooperation, for it was itself a participant in a safe harbor program for the Attwater’s prairie chicken (Tympanuchus cupido attwateri) in Texas.

As elsewhere, southern Virginia landowners were wary of endangered species. About a decade ago, the threat of law enforcement action against one local landowner who cut trees in an area occupied by red-cockaded woodpeckers had garnered a lot of publicity. Years later, that former controversy was still very much on the minds of local forest landowners whenever the subject of endangered species was brought up. Winning the voluntary cooperation of such landowners was likely to require considerable diplomacy.

In 1999, the Conservancy began discussions with the U.S. Fish and Wildlife Service and the Virginia Department of Game and Inland Fisheries concerning a possible safe harbor program that the Conservancy would administer around the Piney Grove Preserve. To aid the discussions, the Conservancy invited representatives of Environmental Defense to participate because of that organization’s prior experience with safe harbor agreements.

The safe harbor program that the Conservancy eventually developed is different in one important respect from other programs for the red-cockaded woodpecker in North and South Carolina and Texas. State or federal agencies administer all of those programs. In Virginia, the Conservancy administers the program. Private landowners may enroll land in the program by entering into written agreements with the Conservancy to carry out any of several beneficial management activities such as regular prescribed burning of hardwood understory, installation of artificial cavities, or allowing young pine stands to reach sufficient age to serve as foraging habitat for the woodpecker. Agreements are for specified terms, after which landowners may, if they choose, harvest timber or engage in other activities that may result in incidental taking of woodpeckers. The only qualification to this right is that if there already were restrictions on the property stemming from the presence of woodpeckers when the agreement was negotiated, those “baseline” restrictions would remain in place.

On July 5, 2000, the Fish and Wildlife Service approved the Conservancy’s permit application. The State of Virginia issued a separate permit for the program under its laws shortly thereafter. Once the state permit was issued, the Conservancy could begin signing agreements with neighboring landowners who are willing to enroll their property in the program. Even before the state permit had been issued, one neighboring landowner, the International Paper Company, had publicly pledged to enroll some of its land adjacent to Piney Grove Preserve in the program. As a result of that commitment and others that the Conservancy hopes to secure, the red-cockaded woodpecker is likely to have a better chance of surviving in Virginia than it has had at any time since it was added to the endangered species list.

Environmental Defense & Endangered Songbirds of the Texas Hill Country

In the late 1980s and early 1990s, the addition of two Texas songbirds, the black-capped vireo (Vireo atricapillus) and the golden-cheeked warbler (Dendroica chrysoparia), to the list of endangered species triggered a torrent of controversy. Most significantly affected were development interests intent on converting ranchland of the scenic Hill Country into pricey new subdivisions around Austin and San Antonio. More distant rural landowners were much less affected, although the anxiety within these communities was heightened by apocryphal stories of landowners who were no longer allowed to drive their trucks down their farm roads or to clear brush from their fence lines.

The loss of habitat to encroaching development in urbanizing areas was easy to see. Less obvious were a series of insidious threats that contributed to a steadily worsening outlook for the birds. Historically, frequent fires in the Hill Country had kept extensive areas in dense, low-growing shrubland that provided an ideal breeding habitat for black-capped vireos. As in many other ecosystems, decades of fire suppression resulted in the maturation of these habitats to a point where they no longer were useful to the vireo. Excessive numbers of white-tailed deer (Odocoileus virginianus) were also degrading habitat quality. Nest-parasitizing brown-headed cowbirds (Molothrus ater) presented yet another threat. In some localities, cowbirds were so abundant that they virtually eliminated any successful nesting by vireos. Unlike the threat of development, these less visible threats could, to a substantial degree, be alleviated through purposeful management of rangeland.

The recovery plans for both of these species recognize the challenge of working in an area where virtually all of the land is privately owned. The plans acknowledge the essential role that private lands must play in the recovery of these species by recommending “incentives for voluntary protection of habitat,” “cooperative efforts” with private landowners, and the pursuit of “creative alternatives at every opportunity.” In 1998, Environmental Defense initiated a program intended to carry out these recommendations.

The core of the Environmental Defense program was to provide technical and limited financial assistance to landowners willing to manage their land for the benefit of either of the two endangered birds. Management actions can include prescribed burning, planting of desired vegetation, cowbird control, improved grazing practices, and other activities. In addition, because landowners who voluntarily undertake to improve conditions for endangered species on their property face potentially increased restrictions on the use of that property, Environmental Defense wanted to be able to offer landowners the option of a safe harbor agreement if they desired it. Thus, in late 1999, Environmental Defense applied to the U.S. Fish and Wildlife Service for a permit to administer a safe harbor program in the Texas Hill Country.

Two factors made the Hill Country safe harbor program somewhat more complicated than the previously discussed programs. First, establishing baseline responsibilities on enrolled properties was complicated because the Service had an existing survey protocol that required frequently repeated surveys over the course of two years to determine the extent of utilization of suitable habitat. Further, unlike with the red-cockaded woodpecker, the Service has never quantified how much of what quality of habitat must be protected if a listed bird is present. Ultimately, to avoid the expense and delay associated with the existing protocols, Environmental Defense agreed to limit the program to situations in which habitat restoration is carried out on sites that do not meet the Service’s definitions of suitable habitat for either species. While this avoided the complexity of working in areas where suitable habitat already existed, it did so at the cost of foregoing opportunities to improve the quality of habitat that, while still suitable for the vireo, was no longer optimal.

A second complicating factor was the potential presence of an endangered cactus. The Service was concerned that the use of prescribed burning to restore vireo habitat might kill individual cacti. To reduce that possibility, the program requires surveys of most properties prior to burning and special measures to protect any cacti located in those surveys. Because the cacti are very cryptic during all but a brief flowering season, these requirements add considerably to the logistical complexity of the effort as well as to its cost.

A permit to implement the Hill Country safe harbor program was issued in December 2000. Even in advance of permit issuance, Environmental Defense had identified several landowners willing to participate in the program and had agreed on management activities to be undertaken on their land. Once formal agreements with these landowners are signed, this safe harbor program will facilitate the sort of voluntary, cooperative conservation effort called for by the recovery plans.

Opportunities for the Future

Safe harbor agreements create a variety of important new opportunities for non-governmental conservation organizations to further the conservation of rare species in the future. Most importantly, these opportunities exist exactly where governmental regulatory efforts have had their greatest challenges, on the working landscape of privately owned farms, ranches, and forest lands. Among such working landscape landowners, a lack of confidence in governmental agencies and programs appears to have increased noticeably in the past decade or more. In such a climate, non-governmental organizations can sometimes build bridges to landowners more easily than governmental agencies can. By acting as an intermediary between the landowner and the government, a non-governmental organization can engage in a dialogue with a landowner unencumbered by the baggage of past conflicts or disagreements.

Although acquisition of key parcels of biologically significant land is a central element of most species conservation efforts, even the most ambitious acquisition programs can acquire only a small portion of the landscape. How the land that remains in private ownership and active use for farming, ranching, or forestry purposes is actually managed will remain quite important. Safe harbor agreements have considerable potential for use on such private lands surrounding lands under conservation ownership. Such agreements can expand the effective size of the core preserve by securing compatible management on neighboring land and eliminating the perceived need for defensive management by such neighbors. Thus, for land trusts and conservation organizations that own preserves or sanctuaries, such as the Massachusetts and National Audubon Societies, safe harbor agreements can be a valuable complement to their historic missions.

Safe harbor agreements also have considerable potential use in reintroducing rare species to sites from which they have long been extirpated. The model provided by The Peregrine Fund’s efforts with the northern aplomado falcon is equally useful for species like the Karner blue butterfly (Lycaeides melissa samuelis), a threatened species now being bred in captivity by a number of zoos for possible reintroduction to the wild. In some respects, reintroduction via safe harbor agreements is preferable to the alternative of utilizing the special “experimental population” process provided by the Endangered Species Act. That process may be unavailable where the species in question still persists in low numbers in the area slated for reintroduction, a matter that gave rise to litigation that nearly aborted the successful reintroduction of gray wolves (Canis lupis) to Yellowstone National Park and nearby areas. Safe harbor agreements avoid that complication altogether by incorporating in the baseline responsibilities of any such agreement any requirements stemming from the presence of the species already on the property at the time of reintroduction.

Although the use of safe harbor agreements is increasing, they remain a conservation tool largely unfamiliar to most landowners, conservation organizations, and even federal and state agency field staff. From the experiences described above, a few useful principles emerge that may be helpful to others contemplating the use of this tool, including not only non-governmental conservation organizations but also agency personnel (see box on page 15).

These simple principles can greatly aid the efforts of non-governmental conservation organizations to work successfully with private landowners. Non-governmental groups can also help government agencies efficiently process their review of permit applications, an important consideration since a landowner’s enthusiasm to get started with a conservation project may wane if the approval process is lengthy.

To succeed in efforts such as these, both non-governmental groups and government agencies must understand that the skills needed are not the same as those needed for “combat biology.” The “us-versus-them” mentality that characterizes such biology is poorly suited to the goal of encouraging voluntary conservation action by private landowners. Developing the quite different skills needed for cooperative approaches to conservation is vitally important for the future of safe harbor and other new conservation tools.

Safe harbor agreements hold great potential for improving the conservation of endangered and threatened species where improvement is most desperately needed ñ on the working landscape of privately owned farms, ranches, and forest lands. Aldo Leopold astutely observed more than half a century ago that “the only progress that counts is that on the actual landscape of the back forty.” Non-governmental conservation organizations can, through the creative use of this new conservation tool, help achieve the real progress that Leopold sought.

Suggested Readings

Environmental Defense and National Cattle-men’s Beef Association 1999. Safe Harbor: Helping Landowners Help Endangered Species, 16pp, available from Environmental Defense.

U.S. Fish and Wildlife Service and National Marine Fisheries Service 1999. Final Safe Harbor Policy, Federal Register 64:32717 (June 17, 1999).

Policies, copies of agreements, and commentary about safe harbor are collected at www.environmentaldefense.org/safeharbor.

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