Temporary Nature / Safe Harbour Agreements
In the context of urbanization and industrialization, often large pieces of land designated for development remain undeveloped for years or decades. This private land could be transformed into temporary areas for nature conservation. The basic concept of temporary nature is to allow landowners derogations from the requirements of species conservation law before endangered species emerge on the property as a result of active management practices or no intervention measures which are voluntarily agreed by the landowner. The idea behind temporary nature is that some species or habitats of conservation interest are pioneers who quickly occupy ecological niches when they become available. These habitats or species benefit from dynamic short-term protection measures that can be accommodated on many otherwise commercially used properties, e.g., quarries, harbours, off-road racetracks, etc. Under a safe harbour agreement, landowners voluntarily propose to implement restorative and habitat management measures aimed at the conservation of threatened or valuable species. In return for restoring habitats of these species, the landowner is provided with a ‘safe harbour guarantee’, ensuring them that no additional conservation measures will be required, and no additional land, water or resource restrictions will be imposed if the number of listed species increases as a result of the landowner’s actions.
Temporary nature, as happens in the Netherlands, provides incentives for landowners to voluntarily use their lands for ecological purposes while awaiting development. This system is mainly aimed at pioneer species that quickly colonise barren soil habitats, such as construction lands, sand heaps or reclaimed port areas. These conditions are almost nowhere to be found in other parts of landscape. Temporary nature can also be used on more developed nature on waste land. Important in both situations, but indispensable in situations with more developed nature on waste land, is a baseline measurement. A baseline measurement consists of a comprehensive inventory of species present on the site before it is put into management. The tool focus less on individual species and more on population management at the level of an ecological unit. At population level, temporarily available habitats guarantee the sustainable survival of a population. Thus, temporary nature can only be beneficial to nature with a permanent backbone structure for species to fall back on when temporary nature disappears.
Landowners on sites awaiting development invest time and money to prevent natural succession e.g. by mowing, ploughing or using pesticides. This is because they are afraid of colonisation of protected species that could impair their development plans as the law stipulates that landowners need to apply for an exemption form species protection or provide compensation for the impact. Here is where save harbour agreements provide a positive solution.
These tools places emphasis on the need for the restoration of nature in Europe. Temporary nature might contribute to the EU Biodiversity Strategy to 2020 (COM (2011)244) which places emphasis on nature restoration. Specifically temporary nature offers temporary green infrastructure, and restoration of nature on sites pending development. While temporary nature sites are not permanent and may not therefore count towards the 15% restoration target, they could complement more permanent restoration actions. Likewise, temporary nature can complement permanent restoration actions aimed for in the EU Green Infrastructure Strategy (COM (2013)249).
- Temporary nature and save harbour agreements are voluntary tools.
- Limited time period.
- It frees landowners from conservation measures or land restrictions if habitat or populations of the targeted species increases as a result of the actions undertaken during the safe harbour or temporary nature agreement.
- Landowner: is willing to achieve temporary conservation purposes on their property.
- Governments: public administration is the actor who allows this kind of temporary conservations, with specific measures and legislation.
- External evaluator: assesses the value of the rights that are given up.
- Nature consultant: evaluates the nature at the beginning and at the end of the contract and supports setting up of nature targets.
Rights and obligations
A voluntary legal agreement between property owners and governments. Management of a site for temporary nature can range from no intervention (allowing natural succession) to active management for specific habitats and species.
Duration of rights
It depends on each country. For example, in the US it’s between 5 and 100 years, and 10 years in Belgium.
These initiatives can include derogations from the species protection restrictions in advance.
At the national level, there may be need for changes to national laws, or in the way they are implemented, to better enable the uptake of temporary nature. For example, in many Member States, additional species and/or habitats, beyond those protected by the Nature Directives, may be protected under national law; these national protections may further constrain temporary nature.
The German Environment Ministry is analysing practical temporary nature experience in the implementation of current legislation, including where conflicts arise, with a view to identifying solutions to these conflicts.
In Flanders, temporary nature is used. However, there is no specific legislation on temporary nature. As a result, temporary nature remains a grey area. In Flanders, temporary nature is implemented by means of two derogations to the species decree. The first is an individual deviation from the prohibitions of the species decree. The second deviation is an individual deviation from the prohibitions on vegetation change in the vegetation decree.
Temporary Nature is not excluded within Natura 2000 but must be implemented within the legal framework set out in Article 6 of the Habitats Directive. But it is important to ensure that temporary nature does not undermine full implementation of the nature directives and does not result in net loss of protected species and/or habitats.
Purpose and application
- It can provide incentives for landowners to use their land awaiting development for conservation purposes. This has been proven in the Netherlands on a case study.
- The legal stipulations of conservation law create the perverse incentive for landowners to take pre-emptive action against protected species and habitats. The temporary support of pioneer species and habitats, can be argued, is in the interest of protecting wild fauna and flora and conserving natural habitats, as compared to the status quo of preventing their emergence on the land in question.
- Landowners voluntarily propose to implement habitat restoration or management measures aimed at species of conservation interest.
- Positive effects can last longer than the lifetime of a temporary nature site.
- While the conservation of ‘ordinary’ biodiversity is often not the primary objective of many nature conservation laws, such as the EU Nature Directives, a more reconciliatory approach towards nature conservation and green infrastructure, which goes beyond the ambit of protected areas, might also serve as a useful catalyst for biodiversity restoration across the wider landscape.
Economic transactions and fiscality
There are no direct costs associated with the temporary nature concept. On the contrary, private landowners save costs by being able to renounce to pre-emptive maintenance measures on their land.
From the administration perspective these tools formalise a practice that is in line with the overall objectives of the Birds and Habitats Directives.
Opportunities for landowners
- Ability to return the property to baseline conditions at the end of the agreement
- Under temporary nature, landowners are no longer seen as the subject of protection rules, but rather as an equal partner at the negotiation table
- Private landowners save costs by being able to renounce to pre-emptive maintenance measures on their land
- If it is required the return of the property to baseline conditions at the end of the agreement, landowners receive a permit that authorizes incidental take of species that may result from actions undertaken by the landowner
Opportunities for conservation NGOs
- They are not directly linked to permit procedures for projects with negative impacts on nature. This means that they can provide a real additional, albeit temporary, benefit for nature conservation
- Otherwise, reluctant owners can be attracted to conservation as legal burdens for conservation are relieved and improve relation to governmental agencies
- It creates more awareness about protected species among developers and builders and therefore induces them to take nature into account in the design and use of their land
- Green management becomes cheaper, healthier and has a good image quality
- No need to invest time and money in preventive exclusion of protected species
- Construction projects without risk of delay due to protected flora and fauna. Nature can be removed as soon as implementation starts
- Giving tangible form to the policy of Corporate Social Responsibility
- A temporary nature reserve contributes to the survival of (rare and protected) plant and animal species
- It is an opportunity to improve the relationship with the people living in the vicinity of your managed site, especially if the temporary nature reserve is open to the public
- Temporary nature can benefit colonization species but does not offer suitable conditions for survival or reproduction on the long-term
- Destruction of the habitat has an impact on non-mobile species, but according to the requirements of the tools the overall population afterwards cannot be smaller than before temporary nature
- Destruction can have a more far-reaching negative impact on species that choose temporary nature for reproduction
- Destruction can cause extinction of species that have no other suitable habitat
- Additional assurances need to be provided to landowners in advance (derogation in advance/agreement), which might conflict with other regulations