Habitat Restoration on Private Lands in the United States and the EU: Moving from Contestation to Collaboration?

Abstract

Current nature conservation laws, which are still mainly based on a traditional ‘command and control approach’, are falling short in delivering the much-anticipated rebound for many of the imperilled species, on both sides of the Atlantic. The reasons that the recovery targets are not being reached are diverse and manifold, ranging from poor enforcement to lack of additional funding. However, one of the causes is the inability of conservation law to involve private landowners in the attempts to save the most endangered and threatened species. In the US new policy tools have been created offering promising alternatives to the traditional ‘command and control approach’ towards nature conservation. The Safe Harbor Agreement, arguably one of the most novel instruments of the past decades in nature conservation, is the main theme of this paper. This newly coined concept offers some interesting prospects for restoration efforts on privately owned plots of land. In return for restoring natural habitats of endangered species, the landowner is provided with a so-called ‘safe harbor guarantee’, ensuring them that no additional conservation measures will be required if the number of listed species increases as a result of the landowner’s actions. Knowing that in some EU Member States a similar policy tool has emerged, which specifically aims at fostering so-called ‘temporary nature’ on lands which are currently lying unused, merely awaiting their residential, infrastructural or industrial purpose, this paper will analyse to what extent such novel regulatory instruments fit in with the requirements of the existing nature conservation laws. By focusing on the parallel developments of both tools in a changing regulatory context, this paper endeavours to outline their main strengths and weaknesses. Although they are not a panacea for all ills, this paper concludes that, if applied with caution and with some insight into the ecological conditions of the sites at hand, these instruments might provide for additional restoration opportunities to avert the loss of our most endangered species.

Keywords: Habitats Directive, Endangered Species Act, habitat restoration, Safe Harbor Agreement, temporary nature, species management