State Codes and Statutes

Statutes > California > Fgc > 2089.2-2089.26

FISH AND GAME CODE
SECTION 2089.2-2089.26



2089.2.  (a) This article shall be known and may be cited as the
California State Safe Harbor Agreement Program Act.
   (b) The Legislature finds that a key to the goals set forth in
this article of conserving, protecting, restoring, and enhancing
endangered, threatened, and candidate species, is their habitat. A
significant portion of the state's current and potential habitat for
these species exists on property owned by private citizens,
municipalities, tribes, and other nonfederal entities. Conservation
efforts on these lands and waters are critical to help these
declining species. Using a collaborative stewardship approach to
these lands and waters will help ensure the success of these efforts.
   (c) 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 and not be
subject to additional regulatory restrictions as a result of their
conservation efforts.
   (d) This article does not relieve landowners of any legal
obligation with respect to endangered, threatened, or candidate
species existing on their land. The program established by this
article is designed to increase species populations, create new
habitats, and enhance existing habitats. Although this increase may
be temporary or long-term, California state safe harbor agreements
shall not reduce the existing populations of species present at the
time the baseline is established by the department.



2089.4.  As used in this article, the following definitions apply:
   (a) "Agreement" means a state safe harbor agreement approved by
the department pursuant to this article. "Agreement" includes an
agreement with an individual landowner and a programmatic agreement.
   (b) "Baseline conditions" means the existing estimated population
size, the extent and quality of habitat, or both population size and
the extent and quality of habitat, for the species on the land to be
enrolled in the agreement that sustain seasonal or permanent use by
the covered species. Baseline conditions shall be determined by the
department, in consultation with the applicant, and shall be based on
the best available science and objective scientific methodologies.
For purposes of establishing baseline conditions, a qualified person
that is not employed by the department may conduct habitat surveys,
if that person has appropriate species expertise and has been
approved by the department.
   (c) "Department" means the Department of Fish and Game, acting
through its director or his or her designee.
   (d) "Landowner" means any person or nonstate or federal entity or
entities that lawfully hold any interest in land or water to which
they are committing to implement the requirements of this article.
   (e) "Management actions" means activities on the enrolled land or
water that are reasonably expected by the department to provide a net
benefit to the species or their habitat, or both.
   (f) "Monitoring program" means a program established or approved
by the department in accordance with subdivision (f) of Section
2089.6.
   (g) "Net conservation benefit" means the cumulative benefits of
the management activities identified in the agreement that provide
for an increase in a species' population or the enhancement,
restoration, or maintenance of covered species' suitable habitats
within the enrolled property. Net conservation benefit shall take
into account the length of the agreement, any offsetting adverse
effects attributable to the incidental taking allowed by the
agreement, and other mutually agreed upon factors. Net conservation
benefits shall be sufficient to contribute either directly or
indirectly to the recovery of the covered species. These benefits
include, but are not limited to, reducing fragmentation and
increasing the connectivity of habitats, maintaining or increasing
populations, enhancing and restoring habitats, and buffering
protected areas.
   (h) "Programmatic agreement" means a state safe harbor agreement
issued to a governmental or nongovernmental program administrator.
The program administrator for a programmatic agreement shall work
with landowners and the department to implement the agreement. The
program administrator and the department shall be responsible for
ensuring compliance with the terms of the agreement.
   (i) "Qualified person" means a person with species expertise who
has been approved by the department.
   (j) "Return to baseline" means, at the termination of an
agreement, activities undertaken by the landowner to return the
species population or extent or quality of habitat to baseline,
excluding catastrophic events such as floods, unplanned fires, or
earthquakes, and other factors mutually agreed upon prior to permit
issuance and that are beyond the control of the landowner.



2089.6.  In addition to the other provisions of this article, the
department may authorize acts that are otherwise prohibited pursuant
to Section 2080 through an agreement, including a programmatic
agreement, if all the following conditions are met:
   (a) The department receives a complete application containing all
of the information described in Section 2089.8.
   (b) The take is incidental to an otherwise lawful activity.
   (c) The department finds that the implementation of the agreement
is reasonably expected to provide a net conservation benefit to the
species listed in the application. This finding shall be based, at a
minimum, upon the determination that the agreement is of sufficient
duration and has appropriate assurances to realize these benefits.
   (d) The take authorized by the agreement will not jeopardize the
continued existence of the species. This determination shall be made
based on the provisions of subdivision (c) of Section 2081.
   (e) The department finds that the landowner has agreed, to the
maximum extent practicable, to avoid or minimize any incidental take
authorized in the agreement, including returning to baseline.
   (f) The department has established or approved a monitoring
program, based upon objective scientific methodologies, to provide
information for the department to evaluate the effectiveness and
efficiency of the agreement program, including whether the net
conservation benefits set forth in the agreement are being achieved
and whether the participating landowner is implementing the
provisions of the agreement.
   (g) The department has determined that sufficient funding is
ensured, for it or its contractors or agents, to determine baseline
conditions on the property, and that there is sufficient funding for
the landowner to carry out management actions and for monitoring for
the duration of the agreement.
   (h) Implementation of the agreement will not be in conflict with
any existing department-approved conservation or recovery programs
for the species covered by the agreement.



2089.8.  The landowner shall submit all of the following:
   (a) A detailed map depicting the land proposed to be enrolled in
the agreement.
   (b) The common and scientific names of the species for which the
landowner requests incidental take authorization.
   (c) A detailed description of the landowner's current land and
water use and management practices that affect the covered species,
and the habitat of the covered species, for which the landowner
requests incidental take authorization.
   (d) A detailed description of the landowner's future land and
water use and management practices that may affect the covered
species, and the habitat of the covered species, for which the
landowner requests incidental take authorization. This description
shall be used only for informational and planning purposes.
   (e) The proposed duration of the agreement that is sufficient to
provide a net conservation benefit to the species covered in the
permit and an explanation of the basis for this conclusion.
   (f) A detailed description of the proposed management actions and
the timeframe for implementing them.
   (g) A description of the possible incidental take that may be
caused by the management actions and of the anticipated species
populations and habitat changes over the duration of the permit.
   (h) A detailed description of the proposed monitoring program.
   (i) Any other information that the department may reasonably
require in order to evaluate the application.



2089.9.  (a) As used in this section, "proprietary information"
means information that is all of the following:
   (1) Related to an agricultural operation or land that is a part of
an agricultural operation.
   (2) A trade secret, or commercial or financial information, that
is privileged or confidential, and is identified as such by the
person providing the information to the department.
   (3) Not required to be disclosed under any other provision of law
or any regulation affecting the land or the agricultural operation on
the land.
   (b) Proprietary information received by the department pursuant to
Section 2089.8 is not public information, and the department shall
not release or disclose the proprietary information to any person,
including any federal, state, or local governmental agency, outside
of the department.
   (c) Notwithstanding subdivision (b), the department may release or
disclose proprietary information received pursuant to Section 2089.8
to the following entities under the following circumstances:
   (1) Any person or federal, state, or local governmental agency, to
enforce this article.
   (2) Any person or federal, state, or local governmental agency
working in cooperation with the department to provide technical or
financial assistance for the purposes of implementing the program
established by this article.
   (3) Any entity, to the extent that the owner, operator, or
producer has consented to the release or disclosure.
   (4) The general public, if the information has been transformed
into a statistical or aggregate form without identifying any
individual owner, operator, or producer, or the specific location
from which the information was gathered.



2089.10.  If an agreement has been approved and the department finds
that the agreement is being properly implemented, the department
shall 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.



2089.12.  (a) 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 shall require that the landowner provide the department
with at least 60 days' advance notice of any of the following:
   (1) Any incidental take that is anticipated to occur under the
agreement.
   (2) The landowner's plan to return to baseline at the end of the
agreement.
   (3) Any plan to transfer or alienate the landowner's interest in
the land or water.
   (b) (1) If the department receives any notice described in
subdivision (a), the landowner shall provide the department, its
contractors, or agents with access to the land or water for purposes
of safely removing or salvaging the species.
   (2) The department shall provide notice to the landowner at least
seven days prior to accessing the land or water for the purposes of
paragraph (1). The notice shall identify each person selected by the
department, its contractors, or agents to access the land or water.
   (3) Notwithstanding paragraph (1), during the seven-day notice
period, a landowner may object, in writing, to a person selected to
access the land or water. If a landowner objects, another person
shall be selected by the department, its contractors, or agents, and
notification shall be provided to the landowner pursuant to paragraph
(2). However, if a landowner objects to a selection on two
successive occasions, the landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by a landowner to object to the
selection within the seven-day notice period shall be deemed consent
to access the land or water by a person selected by the department,
its contractors, or agents.
   (4) If the landowner objects to a person selected to access the
land or water pursuant to paragraph (3), the 60-day notice period
described in subdivision (a) shall be tolled for the period between
the landowner's objection to a person selected for access to the land
or water and the landowner's consent to a person selected for access
to the land or water.



2089.14.  An agreement may be amended with the mutual consent of the
landowner and the department.



2089.16.  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 shall (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.



2089.18.  The suspension and revocation of the agreement shall be
governed by suspension and revocation regulations adopted by the
department.


2089.20.  (a) This section does not provide the public a right of
entry onto the enrolled land or water. The landowner shall 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.
   (b) The department shall provide notice to the landowner at least
seven days before accessing the land or water for the purposes of
subdivision (a). The notice shall identify each person selected by
the department, its contractors, or agents to access the land or
water.
   (c) Notwithstanding subdivision (a), during the seven-day notice
period, a landowner may object, in writing, to a person selected to
access the land or water. If a landowner objects, another person
shall be selected by the department, its contractors, or agents, and
notification shall be provided to the landowner pursuant to
subdivision (b). However, if a landowner objects to a selection on
two successive occasions, the landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by a landowner to object to the
selection within the seven-day notice period shall be deemed consent
to access the land or water by a person selected by the department,
its contractors, or agents.
   (d) (1) Notwithstanding any other law, the landowner is not
required to do either of the following:
   (A) Maintain enrolled land or water, or land or water proposed to
be enrolled in an agreement, in a condition that is safe for access,
entry, or use by the department, its contractors, or agents for
purposes of providing access pursuant to subdivision (a).
   (B) Provide to the department, its contractors, or agents, any
warning of a hazardous condition, use, structure, or activity on
enrolled land or water, or land or water proposed to be enrolled in
an agreement, for purposes of providing access pursuant to
subdivision (a).
   (2) Notwithstanding any other law, the landowner shall not be
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 described in subparagraph (A) or (B) of paragraph (1).
   (3) The provision of access to land pursuant to subdivision (a)
shall not be construed as any of the following:
   (A) An assurance that the land or water is safe.
   (B) A grant to the person accessing the land or water of a legal
status for which the landowner would owe a duty of care.
   (C) An assumption of responsibility or liability for any injury to
a person or property caused by any act of the person to whom access
to the land or water is provided.
   (4) Notwithstanding paragraphs (1) to (3), inclusive, this
subdivision shall not be construed to limit a landowner's liability
for an injury under either of the following circumstances:
   (A) Willful or malicious failure to guard or warn against a
dangerous condition, use, structure, or activity on the land or
water.
   (B) Express invitation to a person by the landowner to access the
land or water, in a manner that is beyond the access required to be
provided pursuant to subdivision (a).
   (e) Nothing in this section creates a duty of care or a ground of
liability for injury to person or property.



2089.22.  (a) If a federal safe harbor agreement has been approved
pursuant to applicable provisions of federal law and the federal safe
harbor agreement contains species that are endangered, threatened,
or are candidate species pursuant to this chapter, no further
authorization or approval is necessary under this article for any
person authorized by that agreement to take the species identified in
and in accordance with the federal Safe Harbor Agreement, if that
person and the department follow all of the procedures specified in
Section 2080.1, except that the determination of consistency shall be
made by the department based only on the issuance criteria contained
in this article.
   (b) The department may adopt nonregulatory guidelines to clarify
how the provisions of this chapter may be used in connection with
voluntary local programs for routine and ongoing agricultural
activities adopted pursuant to Article 3.5 (commencing with Section
2086) and natural community conservation plans adopted pursuant to
Chapter 10 (commencing with Section 2800).



2089.23.  (a) A landowner that owns land that abuts a property
enrolled in a state safe harbor agreement shall not 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 following conditions are met:
   (1) The neighboring landowner allows the department to determine
baseline conditions on the property.
   (2) The neighboring landowner agrees to maintain the baseline
conditions for the duration specified in the safe harbor agreement.
   (3) The department determines that allowing the neighboring
landowner to receive an incidental take permit for the abutting
property does not undermine the net conservation benefit
determination made by the department in the approval of the safe
harbor agreement.
   (4) The take authorized by the department will not jeopardize the
continued existence of the species. This determination shall be made
in accordance with subdivision (c) of Section 2081.
   (b) (1) Unless the department determines that it is inappropriate
to do so based on the species listed in the permit, or any other
factors, the neighboring landowner shall provide the department with
at least 60 days' advance notice of any of the following:
   (A) Any incidental take that is anticipated to occur under the
permit.
   (B) The neighboring landowner's plan to return to baseline
conditions.
   (C) Any plan to transfer or alienate the neighboring landowner's
interest in the land or water.
   (2) (A) If the department receives any notice described in
paragraph (1), the neighboring landowner shall provide the
department, its contractors, or agents with access to the land or
water for purposes of safely removing or salvaging the species.
   (B) The department shall provide notice to the neighboring
landowner at least seven days before accessing the land or water for
the purposes of subparagraph (A). The notice shall identify each
person selected by the department, its contractors, or agents to
access the land or water.
   (C) Notwithstanding subparagraph (B), during the seven-day notice
period, the neighboring landowner may object, in writing, to a person
selected to access the land or water. If the neighboring landowner
objects, another person shall be selected by the department, its
contractors, or agents, and notification shall be provided to the
neighboring landowner pursuant to subparagraph (B). However, if the
neighboring landowner objects to a selection on two successive
occasions, the neighboring landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by the neighboring landowner to
object to the selection within the seven-day notice period shall be
deemed consent to access the land or water by the person selected by
the department, its contractors, or agents.



2089.24.  The department, for informational purposes, shall 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.




2089.25.  The department may promulgate regulations to implement
this article.


2089.26.  This article shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.

State Codes and Statutes

Statutes > California > Fgc > 2089.2-2089.26

FISH AND GAME CODE
SECTION 2089.2-2089.26



2089.2.  (a) This article shall be known and may be cited as the
California State Safe Harbor Agreement Program Act.
   (b) The Legislature finds that a key to the goals set forth in
this article of conserving, protecting, restoring, and enhancing
endangered, threatened, and candidate species, is their habitat. A
significant portion of the state's current and potential habitat for
these species exists on property owned by private citizens,
municipalities, tribes, and other nonfederal entities. Conservation
efforts on these lands and waters are critical to help these
declining species. Using a collaborative stewardship approach to
these lands and waters will help ensure the success of these efforts.
   (c) 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 and not be
subject to additional regulatory restrictions as a result of their
conservation efforts.
   (d) This article does not relieve landowners of any legal
obligation with respect to endangered, threatened, or candidate
species existing on their land. The program established by this
article is designed to increase species populations, create new
habitats, and enhance existing habitats. Although this increase may
be temporary or long-term, California state safe harbor agreements
shall not reduce the existing populations of species present at the
time the baseline is established by the department.



2089.4.  As used in this article, the following definitions apply:
   (a) "Agreement" means a state safe harbor agreement approved by
the department pursuant to this article. "Agreement" includes an
agreement with an individual landowner and a programmatic agreement.
   (b) "Baseline conditions" means the existing estimated population
size, the extent and quality of habitat, or both population size and
the extent and quality of habitat, for the species on the land to be
enrolled in the agreement that sustain seasonal or permanent use by
the covered species. Baseline conditions shall be determined by the
department, in consultation with the applicant, and shall be based on
the best available science and objective scientific methodologies.
For purposes of establishing baseline conditions, a qualified person
that is not employed by the department may conduct habitat surveys,
if that person has appropriate species expertise and has been
approved by the department.
   (c) "Department" means the Department of Fish and Game, acting
through its director or his or her designee.
   (d) "Landowner" means any person or nonstate or federal entity or
entities that lawfully hold any interest in land or water to which
they are committing to implement the requirements of this article.
   (e) "Management actions" means activities on the enrolled land or
water that are reasonably expected by the department to provide a net
benefit to the species or their habitat, or both.
   (f) "Monitoring program" means a program established or approved
by the department in accordance with subdivision (f) of Section
2089.6.
   (g) "Net conservation benefit" means the cumulative benefits of
the management activities identified in the agreement that provide
for an increase in a species' population or the enhancement,
restoration, or maintenance of covered species' suitable habitats
within the enrolled property. Net conservation benefit shall take
into account the length of the agreement, any offsetting adverse
effects attributable to the incidental taking allowed by the
agreement, and other mutually agreed upon factors. Net conservation
benefits shall be sufficient to contribute either directly or
indirectly to the recovery of the covered species. These benefits
include, but are not limited to, reducing fragmentation and
increasing the connectivity of habitats, maintaining or increasing
populations, enhancing and restoring habitats, and buffering
protected areas.
   (h) "Programmatic agreement" means a state safe harbor agreement
issued to a governmental or nongovernmental program administrator.
The program administrator for a programmatic agreement shall work
with landowners and the department to implement the agreement. The
program administrator and the department shall be responsible for
ensuring compliance with the terms of the agreement.
   (i) "Qualified person" means a person with species expertise who
has been approved by the department.
   (j) "Return to baseline" means, at the termination of an
agreement, activities undertaken by the landowner to return the
species population or extent or quality of habitat to baseline,
excluding catastrophic events such as floods, unplanned fires, or
earthquakes, and other factors mutually agreed upon prior to permit
issuance and that are beyond the control of the landowner.



2089.6.  In addition to the other provisions of this article, the
department may authorize acts that are otherwise prohibited pursuant
to Section 2080 through an agreement, including a programmatic
agreement, if all the following conditions are met:
   (a) The department receives a complete application containing all
of the information described in Section 2089.8.
   (b) The take is incidental to an otherwise lawful activity.
   (c) The department finds that the implementation of the agreement
is reasonably expected to provide a net conservation benefit to the
species listed in the application. This finding shall be based, at a
minimum, upon the determination that the agreement is of sufficient
duration and has appropriate assurances to realize these benefits.
   (d) The take authorized by the agreement will not jeopardize the
continued existence of the species. This determination shall be made
based on the provisions of subdivision (c) of Section 2081.
   (e) The department finds that the landowner has agreed, to the
maximum extent practicable, to avoid or minimize any incidental take
authorized in the agreement, including returning to baseline.
   (f) The department has established or approved a monitoring
program, based upon objective scientific methodologies, to provide
information for the department to evaluate the effectiveness and
efficiency of the agreement program, including whether the net
conservation benefits set forth in the agreement are being achieved
and whether the participating landowner is implementing the
provisions of the agreement.
   (g) The department has determined that sufficient funding is
ensured, for it or its contractors or agents, to determine baseline
conditions on the property, and that there is sufficient funding for
the landowner to carry out management actions and for monitoring for
the duration of the agreement.
   (h) Implementation of the agreement will not be in conflict with
any existing department-approved conservation or recovery programs
for the species covered by the agreement.



2089.8.  The landowner shall submit all of the following:
   (a) A detailed map depicting the land proposed to be enrolled in
the agreement.
   (b) The common and scientific names of the species for which the
landowner requests incidental take authorization.
   (c) A detailed description of the landowner's current land and
water use and management practices that affect the covered species,
and the habitat of the covered species, for which the landowner
requests incidental take authorization.
   (d) A detailed description of the landowner's future land and
water use and management practices that may affect the covered
species, and the habitat of the covered species, for which the
landowner requests incidental take authorization. This description
shall be used only for informational and planning purposes.
   (e) The proposed duration of the agreement that is sufficient to
provide a net conservation benefit to the species covered in the
permit and an explanation of the basis for this conclusion.
   (f) A detailed description of the proposed management actions and
the timeframe for implementing them.
   (g) A description of the possible incidental take that may be
caused by the management actions and of the anticipated species
populations and habitat changes over the duration of the permit.
   (h) A detailed description of the proposed monitoring program.
   (i) Any other information that the department may reasonably
require in order to evaluate the application.



2089.9.  (a) As used in this section, "proprietary information"
means information that is all of the following:
   (1) Related to an agricultural operation or land that is a part of
an agricultural operation.
   (2) A trade secret, or commercial or financial information, that
is privileged or confidential, and is identified as such by the
person providing the information to the department.
   (3) Not required to be disclosed under any other provision of law
or any regulation affecting the land or the agricultural operation on
the land.
   (b) Proprietary information received by the department pursuant to
Section 2089.8 is not public information, and the department shall
not release or disclose the proprietary information to any person,
including any federal, state, or local governmental agency, outside
of the department.
   (c) Notwithstanding subdivision (b), the department may release or
disclose proprietary information received pursuant to Section 2089.8
to the following entities under the following circumstances:
   (1) Any person or federal, state, or local governmental agency, to
enforce this article.
   (2) Any person or federal, state, or local governmental agency
working in cooperation with the department to provide technical or
financial assistance for the purposes of implementing the program
established by this article.
   (3) Any entity, to the extent that the owner, operator, or
producer has consented to the release or disclosure.
   (4) The general public, if the information has been transformed
into a statistical or aggregate form without identifying any
individual owner, operator, or producer, or the specific location
from which the information was gathered.



2089.10.  If an agreement has been approved and the department finds
that the agreement is being properly implemented, the department
shall 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.



2089.12.  (a) 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 shall require that the landowner provide the department
with at least 60 days' advance notice of any of the following:
   (1) Any incidental take that is anticipated to occur under the
agreement.
   (2) The landowner's plan to return to baseline at the end of the
agreement.
   (3) Any plan to transfer or alienate the landowner's interest in
the land or water.
   (b) (1) If the department receives any notice described in
subdivision (a), the landowner shall provide the department, its
contractors, or agents with access to the land or water for purposes
of safely removing or salvaging the species.
   (2) The department shall provide notice to the landowner at least
seven days prior to accessing the land or water for the purposes of
paragraph (1). The notice shall identify each person selected by the
department, its contractors, or agents to access the land or water.
   (3) Notwithstanding paragraph (1), during the seven-day notice
period, a landowner may object, in writing, to a person selected to
access the land or water. If a landowner objects, another person
shall be selected by the department, its contractors, or agents, and
notification shall be provided to the landowner pursuant to paragraph
(2). However, if a landowner objects to a selection on two
successive occasions, the landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by a landowner to object to the
selection within the seven-day notice period shall be deemed consent
to access the land or water by a person selected by the department,
its contractors, or agents.
   (4) If the landowner objects to a person selected to access the
land or water pursuant to paragraph (3), the 60-day notice period
described in subdivision (a) shall be tolled for the period between
the landowner's objection to a person selected for access to the land
or water and the landowner's consent to a person selected for access
to the land or water.



2089.14.  An agreement may be amended with the mutual consent of the
landowner and the department.



2089.16.  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 shall (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.



2089.18.  The suspension and revocation of the agreement shall be
governed by suspension and revocation regulations adopted by the
department.


2089.20.  (a) This section does not provide the public a right of
entry onto the enrolled land or water. The landowner shall 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.
   (b) The department shall provide notice to the landowner at least
seven days before accessing the land or water for the purposes of
subdivision (a). The notice shall identify each person selected by
the department, its contractors, or agents to access the land or
water.
   (c) Notwithstanding subdivision (a), during the seven-day notice
period, a landowner may object, in writing, to a person selected to
access the land or water. If a landowner objects, another person
shall be selected by the department, its contractors, or agents, and
notification shall be provided to the landowner pursuant to
subdivision (b). However, if a landowner objects to a selection on
two successive occasions, the landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by a landowner to object to the
selection within the seven-day notice period shall be deemed consent
to access the land or water by a person selected by the department,
its contractors, or agents.
   (d) (1) Notwithstanding any other law, the landowner is not
required to do either of the following:
   (A) Maintain enrolled land or water, or land or water proposed to
be enrolled in an agreement, in a condition that is safe for access,
entry, or use by the department, its contractors, or agents for
purposes of providing access pursuant to subdivision (a).
   (B) Provide to the department, its contractors, or agents, any
warning of a hazardous condition, use, structure, or activity on
enrolled land or water, or land or water proposed to be enrolled in
an agreement, for purposes of providing access pursuant to
subdivision (a).
   (2) Notwithstanding any other law, the landowner shall not be
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 described in subparagraph (A) or (B) of paragraph (1).
   (3) The provision of access to land pursuant to subdivision (a)
shall not be construed as any of the following:
   (A) An assurance that the land or water is safe.
   (B) A grant to the person accessing the land or water of a legal
status for which the landowner would owe a duty of care.
   (C) An assumption of responsibility or liability for any injury to
a person or property caused by any act of the person to whom access
to the land or water is provided.
   (4) Notwithstanding paragraphs (1) to (3), inclusive, this
subdivision shall not be construed to limit a landowner's liability
for an injury under either of the following circumstances:
   (A) Willful or malicious failure to guard or warn against a
dangerous condition, use, structure, or activity on the land or
water.
   (B) Express invitation to a person by the landowner to access the
land or water, in a manner that is beyond the access required to be
provided pursuant to subdivision (a).
   (e) Nothing in this section creates a duty of care or a ground of
liability for injury to person or property.



2089.22.  (a) If a federal safe harbor agreement has been approved
pursuant to applicable provisions of federal law and the federal safe
harbor agreement contains species that are endangered, threatened,
or are candidate species pursuant to this chapter, no further
authorization or approval is necessary under this article for any
person authorized by that agreement to take the species identified in
and in accordance with the federal Safe Harbor Agreement, if that
person and the department follow all of the procedures specified in
Section 2080.1, except that the determination of consistency shall be
made by the department based only on the issuance criteria contained
in this article.
   (b) The department may adopt nonregulatory guidelines to clarify
how the provisions of this chapter may be used in connection with
voluntary local programs for routine and ongoing agricultural
activities adopted pursuant to Article 3.5 (commencing with Section
2086) and natural community conservation plans adopted pursuant to
Chapter 10 (commencing with Section 2800).



2089.23.  (a) A landowner that owns land that abuts a property
enrolled in a state safe harbor agreement shall not 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 following conditions are met:
   (1) The neighboring landowner allows the department to determine
baseline conditions on the property.
   (2) The neighboring landowner agrees to maintain the baseline
conditions for the duration specified in the safe harbor agreement.
   (3) The department determines that allowing the neighboring
landowner to receive an incidental take permit for the abutting
property does not undermine the net conservation benefit
determination made by the department in the approval of the safe
harbor agreement.
   (4) The take authorized by the department will not jeopardize the
continued existence of the species. This determination shall be made
in accordance with subdivision (c) of Section 2081.
   (b) (1) Unless the department determines that it is inappropriate
to do so based on the species listed in the permit, or any other
factors, the neighboring landowner shall provide the department with
at least 60 days' advance notice of any of the following:
   (A) Any incidental take that is anticipated to occur under the
permit.
   (B) The neighboring landowner's plan to return to baseline
conditions.
   (C) Any plan to transfer or alienate the neighboring landowner's
interest in the land or water.
   (2) (A) If the department receives any notice described in
paragraph (1), the neighboring landowner shall provide the
department, its contractors, or agents with access to the land or
water for purposes of safely removing or salvaging the species.
   (B) The department shall provide notice to the neighboring
landowner at least seven days before accessing the land or water for
the purposes of subparagraph (A). The notice shall identify each
person selected by the department, its contractors, or agents to
access the land or water.
   (C) Notwithstanding subparagraph (B), during the seven-day notice
period, the neighboring landowner may object, in writing, to a person
selected to access the land or water. If the neighboring landowner
objects, another person shall be selected by the department, its
contractors, or agents, and notification shall be provided to the
neighboring landowner pursuant to subparagraph (B). However, if the
neighboring landowner objects to a selection on two successive
occasions, the neighboring landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by the neighboring landowner to
object to the selection within the seven-day notice period shall be
deemed consent to access the land or water by the person selected by
the department, its contractors, or agents.



2089.24.  The department, for informational purposes, shall 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.




2089.25.  The department may promulgate regulations to implement
this article.


2089.26.  This article shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.


State Codes and Statutes

State Codes and Statutes

Statutes > California > Fgc > 2089.2-2089.26

FISH AND GAME CODE
SECTION 2089.2-2089.26



2089.2.  (a) This article shall be known and may be cited as the
California State Safe Harbor Agreement Program Act.
   (b) The Legislature finds that a key to the goals set forth in
this article of conserving, protecting, restoring, and enhancing
endangered, threatened, and candidate species, is their habitat. A
significant portion of the state's current and potential habitat for
these species exists on property owned by private citizens,
municipalities, tribes, and other nonfederal entities. Conservation
efforts on these lands and waters are critical to help these
declining species. Using a collaborative stewardship approach to
these lands and waters will help ensure the success of these efforts.
   (c) 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 and not be
subject to additional regulatory restrictions as a result of their
conservation efforts.
   (d) This article does not relieve landowners of any legal
obligation with respect to endangered, threatened, or candidate
species existing on their land. The program established by this
article is designed to increase species populations, create new
habitats, and enhance existing habitats. Although this increase may
be temporary or long-term, California state safe harbor agreements
shall not reduce the existing populations of species present at the
time the baseline is established by the department.



2089.4.  As used in this article, the following definitions apply:
   (a) "Agreement" means a state safe harbor agreement approved by
the department pursuant to this article. "Agreement" includes an
agreement with an individual landowner and a programmatic agreement.
   (b) "Baseline conditions" means the existing estimated population
size, the extent and quality of habitat, or both population size and
the extent and quality of habitat, for the species on the land to be
enrolled in the agreement that sustain seasonal or permanent use by
the covered species. Baseline conditions shall be determined by the
department, in consultation with the applicant, and shall be based on
the best available science and objective scientific methodologies.
For purposes of establishing baseline conditions, a qualified person
that is not employed by the department may conduct habitat surveys,
if that person has appropriate species expertise and has been
approved by the department.
   (c) "Department" means the Department of Fish and Game, acting
through its director or his or her designee.
   (d) "Landowner" means any person or nonstate or federal entity or
entities that lawfully hold any interest in land or water to which
they are committing to implement the requirements of this article.
   (e) "Management actions" means activities on the enrolled land or
water that are reasonably expected by the department to provide a net
benefit to the species or their habitat, or both.
   (f) "Monitoring program" means a program established or approved
by the department in accordance with subdivision (f) of Section
2089.6.
   (g) "Net conservation benefit" means the cumulative benefits of
the management activities identified in the agreement that provide
for an increase in a species' population or the enhancement,
restoration, or maintenance of covered species' suitable habitats
within the enrolled property. Net conservation benefit shall take
into account the length of the agreement, any offsetting adverse
effects attributable to the incidental taking allowed by the
agreement, and other mutually agreed upon factors. Net conservation
benefits shall be sufficient to contribute either directly or
indirectly to the recovery of the covered species. These benefits
include, but are not limited to, reducing fragmentation and
increasing the connectivity of habitats, maintaining or increasing
populations, enhancing and restoring habitats, and buffering
protected areas.
   (h) "Programmatic agreement" means a state safe harbor agreement
issued to a governmental or nongovernmental program administrator.
The program administrator for a programmatic agreement shall work
with landowners and the department to implement the agreement. The
program administrator and the department shall be responsible for
ensuring compliance with the terms of the agreement.
   (i) "Qualified person" means a person with species expertise who
has been approved by the department.
   (j) "Return to baseline" means, at the termination of an
agreement, activities undertaken by the landowner to return the
species population or extent or quality of habitat to baseline,
excluding catastrophic events such as floods, unplanned fires, or
earthquakes, and other factors mutually agreed upon prior to permit
issuance and that are beyond the control of the landowner.



2089.6.  In addition to the other provisions of this article, the
department may authorize acts that are otherwise prohibited pursuant
to Section 2080 through an agreement, including a programmatic
agreement, if all the following conditions are met:
   (a) The department receives a complete application containing all
of the information described in Section 2089.8.
   (b) The take is incidental to an otherwise lawful activity.
   (c) The department finds that the implementation of the agreement
is reasonably expected to provide a net conservation benefit to the
species listed in the application. This finding shall be based, at a
minimum, upon the determination that the agreement is of sufficient
duration and has appropriate assurances to realize these benefits.
   (d) The take authorized by the agreement will not jeopardize the
continued existence of the species. This determination shall be made
based on the provisions of subdivision (c) of Section 2081.
   (e) The department finds that the landowner has agreed, to the
maximum extent practicable, to avoid or minimize any incidental take
authorized in the agreement, including returning to baseline.
   (f) The department has established or approved a monitoring
program, based upon objective scientific methodologies, to provide
information for the department to evaluate the effectiveness and
efficiency of the agreement program, including whether the net
conservation benefits set forth in the agreement are being achieved
and whether the participating landowner is implementing the
provisions of the agreement.
   (g) The department has determined that sufficient funding is
ensured, for it or its contractors or agents, to determine baseline
conditions on the property, and that there is sufficient funding for
the landowner to carry out management actions and for monitoring for
the duration of the agreement.
   (h) Implementation of the agreement will not be in conflict with
any existing department-approved conservation or recovery programs
for the species covered by the agreement.



2089.8.  The landowner shall submit all of the following:
   (a) A detailed map depicting the land proposed to be enrolled in
the agreement.
   (b) The common and scientific names of the species for which the
landowner requests incidental take authorization.
   (c) A detailed description of the landowner's current land and
water use and management practices that affect the covered species,
and the habitat of the covered species, for which the landowner
requests incidental take authorization.
   (d) A detailed description of the landowner's future land and
water use and management practices that may affect the covered
species, and the habitat of the covered species, for which the
landowner requests incidental take authorization. This description
shall be used only for informational and planning purposes.
   (e) The proposed duration of the agreement that is sufficient to
provide a net conservation benefit to the species covered in the
permit and an explanation of the basis for this conclusion.
   (f) A detailed description of the proposed management actions and
the timeframe for implementing them.
   (g) A description of the possible incidental take that may be
caused by the management actions and of the anticipated species
populations and habitat changes over the duration of the permit.
   (h) A detailed description of the proposed monitoring program.
   (i) Any other information that the department may reasonably
require in order to evaluate the application.



2089.9.  (a) As used in this section, "proprietary information"
means information that is all of the following:
   (1) Related to an agricultural operation or land that is a part of
an agricultural operation.
   (2) A trade secret, or commercial or financial information, that
is privileged or confidential, and is identified as such by the
person providing the information to the department.
   (3) Not required to be disclosed under any other provision of law
or any regulation affecting the land or the agricultural operation on
the land.
   (b) Proprietary information received by the department pursuant to
Section 2089.8 is not public information, and the department shall
not release or disclose the proprietary information to any person,
including any federal, state, or local governmental agency, outside
of the department.
   (c) Notwithstanding subdivision (b), the department may release or
disclose proprietary information received pursuant to Section 2089.8
to the following entities under the following circumstances:
   (1) Any person or federal, state, or local governmental agency, to
enforce this article.
   (2) Any person or federal, state, or local governmental agency
working in cooperation with the department to provide technical or
financial assistance for the purposes of implementing the program
established by this article.
   (3) Any entity, to the extent that the owner, operator, or
producer has consented to the release or disclosure.
   (4) The general public, if the information has been transformed
into a statistical or aggregate form without identifying any
individual owner, operator, or producer, or the specific location
from which the information was gathered.



2089.10.  If an agreement has been approved and the department finds
that the agreement is being properly implemented, the department
shall 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.



2089.12.  (a) 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 shall require that the landowner provide the department
with at least 60 days' advance notice of any of the following:
   (1) Any incidental take that is anticipated to occur under the
agreement.
   (2) The landowner's plan to return to baseline at the end of the
agreement.
   (3) Any plan to transfer or alienate the landowner's interest in
the land or water.
   (b) (1) If the department receives any notice described in
subdivision (a), the landowner shall provide the department, its
contractors, or agents with access to the land or water for purposes
of safely removing or salvaging the species.
   (2) The department shall provide notice to the landowner at least
seven days prior to accessing the land or water for the purposes of
paragraph (1). The notice shall identify each person selected by the
department, its contractors, or agents to access the land or water.
   (3) Notwithstanding paragraph (1), during the seven-day notice
period, a landowner may object, in writing, to a person selected to
access the land or water. If a landowner objects, another person
shall be selected by the department, its contractors, or agents, and
notification shall be provided to the landowner pursuant to paragraph
(2). However, if a landowner objects to a selection on two
successive occasions, the landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by a landowner to object to the
selection within the seven-day notice period shall be deemed consent
to access the land or water by a person selected by the department,
its contractors, or agents.
   (4) If the landowner objects to a person selected to access the
land or water pursuant to paragraph (3), the 60-day notice period
described in subdivision (a) shall be tolled for the period between
the landowner's objection to a person selected for access to the land
or water and the landowner's consent to a person selected for access
to the land or water.



2089.14.  An agreement may be amended with the mutual consent of the
landowner and the department.



2089.16.  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 shall (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.



2089.18.  The suspension and revocation of the agreement shall be
governed by suspension and revocation regulations adopted by the
department.


2089.20.  (a) This section does not provide the public a right of
entry onto the enrolled land or water. The landowner shall 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.
   (b) The department shall provide notice to the landowner at least
seven days before accessing the land or water for the purposes of
subdivision (a). The notice shall identify each person selected by
the department, its contractors, or agents to access the land or
water.
   (c) Notwithstanding subdivision (a), during the seven-day notice
period, a landowner may object, in writing, to a person selected to
access the land or water. If a landowner objects, another person
shall be selected by the department, its contractors, or agents, and
notification shall be provided to the landowner pursuant to
subdivision (b). However, if a landowner objects to a selection on
two successive occasions, the landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by a landowner to object to the
selection within the seven-day notice period shall be deemed consent
to access the land or water by a person selected by the department,
its contractors, or agents.
   (d) (1) Notwithstanding any other law, the landowner is not
required to do either of the following:
   (A) Maintain enrolled land or water, or land or water proposed to
be enrolled in an agreement, in a condition that is safe for access,
entry, or use by the department, its contractors, or agents for
purposes of providing access pursuant to subdivision (a).
   (B) Provide to the department, its contractors, or agents, any
warning of a hazardous condition, use, structure, or activity on
enrolled land or water, or land or water proposed to be enrolled in
an agreement, for purposes of providing access pursuant to
subdivision (a).
   (2) Notwithstanding any other law, the landowner shall not be
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 described in subparagraph (A) or (B) of paragraph (1).
   (3) The provision of access to land pursuant to subdivision (a)
shall not be construed as any of the following:
   (A) An assurance that the land or water is safe.
   (B) A grant to the person accessing the land or water of a legal
status for which the landowner would owe a duty of care.
   (C) An assumption of responsibility or liability for any injury to
a person or property caused by any act of the person to whom access
to the land or water is provided.
   (4) Notwithstanding paragraphs (1) to (3), inclusive, this
subdivision shall not be construed to limit a landowner's liability
for an injury under either of the following circumstances:
   (A) Willful or malicious failure to guard or warn against a
dangerous condition, use, structure, or activity on the land or
water.
   (B) Express invitation to a person by the landowner to access the
land or water, in a manner that is beyond the access required to be
provided pursuant to subdivision (a).
   (e) Nothing in this section creates a duty of care or a ground of
liability for injury to person or property.



2089.22.  (a) If a federal safe harbor agreement has been approved
pursuant to applicable provisions of federal law and the federal safe
harbor agreement contains species that are endangered, threatened,
or are candidate species pursuant to this chapter, no further
authorization or approval is necessary under this article for any
person authorized by that agreement to take the species identified in
and in accordance with the federal Safe Harbor Agreement, if that
person and the department follow all of the procedures specified in
Section 2080.1, except that the determination of consistency shall be
made by the department based only on the issuance criteria contained
in this article.
   (b) The department may adopt nonregulatory guidelines to clarify
how the provisions of this chapter may be used in connection with
voluntary local programs for routine and ongoing agricultural
activities adopted pursuant to Article 3.5 (commencing with Section
2086) and natural community conservation plans adopted pursuant to
Chapter 10 (commencing with Section 2800).



2089.23.  (a) A landowner that owns land that abuts a property
enrolled in a state safe harbor agreement shall not 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 following conditions are met:
   (1) The neighboring landowner allows the department to determine
baseline conditions on the property.
   (2) The neighboring landowner agrees to maintain the baseline
conditions for the duration specified in the safe harbor agreement.
   (3) The department determines that allowing the neighboring
landowner to receive an incidental take permit for the abutting
property does not undermine the net conservation benefit
determination made by the department in the approval of the safe
harbor agreement.
   (4) The take authorized by the department will not jeopardize the
continued existence of the species. This determination shall be made
in accordance with subdivision (c) of Section 2081.
   (b) (1) Unless the department determines that it is inappropriate
to do so based on the species listed in the permit, or any other
factors, the neighboring landowner shall provide the department with
at least 60 days' advance notice of any of the following:
   (A) Any incidental take that is anticipated to occur under the
permit.
   (B) The neighboring landowner's plan to return to baseline
conditions.
   (C) Any plan to transfer or alienate the neighboring landowner's
interest in the land or water.
   (2) (A) If the department receives any notice described in
paragraph (1), the neighboring landowner shall provide the
department, its contractors, or agents with access to the land or
water for purposes of safely removing or salvaging the species.
   (B) The department shall provide notice to the neighboring
landowner at least seven days before accessing the land or water for
the purposes of subparagraph (A). The notice shall identify each
person selected by the department, its contractors, or agents to
access the land or water.
   (C) Notwithstanding subparagraph (B), during the seven-day notice
period, the neighboring landowner may object, in writing, to a person
selected to access the land or water. If the neighboring landowner
objects, another person shall be selected by the department, its
contractors, or agents, and notification shall be provided to the
neighboring landowner pursuant to subparagraph (B). However, if the
neighboring landowner objects to a selection on two successive
occasions, the neighboring landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by the neighboring landowner to
object to the selection within the seven-day notice period shall be
deemed consent to access the land or water by the person selected by
the department, its contractors, or agents.



2089.24.  The department, for informational purposes, shall 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.




2089.25.  The department may promulgate regulations to implement
this article.


2089.26.  This article shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.