Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Conservation Easements: Will They Stick?

At best regulatory programs can only prevent or reduce the rate of loss of wetland functions and values nationally. Section 404 permits affect perhaps a few tens of thousands of acres of wetlands annually.  Any serious attempt to restore some portion of the 100 million acres lost since European settlement must come from voluntary wetlands programs.

Conservation easements are a relatively new tool for protecting natural resources.  The number of acres held by land trusts alone has grown from 128,000 acres in 1980 to 5,067,929 in 2000.*

Year    Land Trusts    Acres
1950       53
1980      431             128,000
1990      887             465,000  
2000    1526           5,067,929

*Conservation Easements:  A Troubled Adolescence by Nancy McLaughlin
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1460187

The Wetlands Reserve Program, the largest wetland restoration program in the country, has enrolled over 2 million acres of wetland restoration with a goal of reaching 3 million acres by 2012.  The majority of these wetlands are in perpetual easements.

Easements for wetlands are held by nonprofits such as land trusts or local, state and federal government.  The land where the wetland is located in most cases continues to be owned by a private landowner who may undertake activities compatible with the wetland easement such as hunting and fishing.  He or she may also sell the land in the future and the future landowner will also be required to comply with the terms of the perpetual easement.

However, given the newness of conservation easements, there are a number of different actions that may occur that would raise questions.

What happens if the landowner wants to ‘purchase’ the easement back at a later time?  Is that allowed?

What if the local highway department determines a new road should pass through the easement land?

What if a current or future landowner fails to comply with the conditions of the agreement?  Will the entity that holds the easement take notice and enforce the easement? 

What if the land trust or nonprofit organization that has the easement ceases to exist? 

What if climate change alters precipitation and temperature so that a wetland can no longer be maintained on the property?

Does the easement instrument itself convey to the party that holds the easement the ability to make amendments or adjustments to the easement or is judicial review required?

There may be at least two different parts of the government engaged in what happens to the easement:  the federal or state agency that purchased the easement and the Internal Revenue Service (IRS).  These different parts of the government may take different positions in answering some of the answers above.

Clearly a consistent approach is needed to address these and other questions that will arise in the coming years. 

Nancy McLaughlin of University of Utah S.J. Quinney College of Law has written extensively on this topic and she has recommended that–

 “conservation easements donated to counties, cities, and other agencies of state government… or charitable organizations should be treated as restricted charitable gifts or charitable trusts, and the holders of such easements should be subject to the equitable rules governing a donee’s use and disposition of charitable assets”*

* “Rethinking the Perpetual Nature of Conservation Easements” Harvard Environmental Law Review http://papers.ssrn.com/sol3/papers.cfm?abstract_id=757009

Consistency is also important in the context of Section 404 mitigation under the Corps’ and EPA’s mitigation rule, which requires some type of site protection instrument (e.g. conservation easement) to ensure that the mitigation is maintained in perpetuity. http://www.epa.gov/owow/wetlands/pdf/Mit_rule_QA.pdf 

Conservation easements have become an integral part of wetlands protection efforts over the past 30 years.  We need to be certain their future as an useful, flexible tool to conserve, restore and protect wetlands is assured.  

For more information about conservation easements:

Land Conservation and Grant Assistance Programs (Private Landowner Network) http://www.privatelandownernetwork.org/grantprograms/

What is a conservation easement? (Questions and Answers from Little Traverse Conservancy)
http://landtrust.org/ProtectingLand/EasementInfo.htm

For related publications on conservation easements and land trusts that protect wetlands, visit: http://aswm.org/lwp/land_trusts/index.htm

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One Response to The Compleat Wetlander: Conservation Easements: Will They Stick?

  1. Terri L Turner, AICP, CFM says:

    While the questions Ms Christie raised in her blog post are indeed “good questions”, they are not necessarily new questions and have, in fact, been asked a number of times throughout land trust/land conservation/conservation easement history. Land trusts are no longer about “bucks and acres” and are increasingly being called on to be more accountable to the public at large. In an effort to answer the questions posed by Ms. Christie, and questions like them posed by skeptical landowners and overly cautious naysayers, and to promote confidence in and ensure the integrity of land trusts nationwide, the Land Trust Alliance formed an independent program – the Land Trust Accreditation Commission. The Land Trust Accreditation Commission strives to “increase public awareness of, and confidence in, land trust and land conservation” through its accreditation process. The accreditation process “recognizes organizations for meeting national standards for excellence, upholding the public trust and ensuring that conservation efforts are permanent”.

    Accreditation is not a process that is “taken lightly” by its applicants, but is in place to ensure the strength of land trusts nationwide as a mechanism for permanent land conservation. Accreditation imposes a set of standards and practices on participating land trusts and requires them to adopt the guidelines and principles of Land Trust Standards and Practices. This guidance document outlines the ethical and technical standards for responsible operation of a land trust and ensures that the land trust meets a stringent national quality standard for protecting important sensitive lands and working that land in perpetuity. Accreditation also demonstrates that the land trust has met a rigorous and independent review of their internal practices and has met established standards for program quality and permanent land protection. The Accreditation Program also ensures that land trusts have credibility and the financial wherewithal to defend the land they are set up to protect – either by caring for the land themselves or by transferring the land to an entity that can permanently care for and preserve it.

    The Land Trust Alliance, through its Land Trust Accreditation Commission, has certainly improved the operational strength of land trusts nationwide, has increased the credibility of these organizations to the general public and has productively streamlined the process of land acquisition for the land trusts themselves. Accreditation will provide a future in which (hopefully) dramatic gains will be seen in stewardship towards and protection of sensitive natural areas, public perception of land trusts will become one of trust and respect, and the Accreditation program will grow in overall effectiveness – providing a system of integrity, accountability and service to land trusts nationwide. The Land Trust Alliance accreditation program, since its inception in September of 2005, can truly be deemed a success story in its four short years of existence !

    Terri L Turner, AICP, CFM
    GAFM Chair

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