By Marisa Michaelsen
Conservation Easements as an Approach to Sea Level Rise
Land preservation has become one of the most pressing issues on the environmental agenda. With the high cost associated with preserving land in its natural state, as well as opposition from property right owners, it remains a difficult area to obtain compromise. Land preservationists are frequently turning to a legal device that is relatively low cost to overcome these issues: conservation easements.
A conservation easement is a legally binding agreement between a property owner and a nonprofit organization that restricts development on the land covered by the easement. The definition of a “conservation easement” is set forth in the Uniform Conservation Easement Act. It states:
“Conservation easement” means a non-possessory interest of a holder in real property imposing limitations or affirmative obligations the purpose of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical architectural, archaeological, or cultural aspects of real property.
Most easements run with the land. This means that no matter who owns the underlying real estate of the property, the easement continues with the successor owner of the property. The first step to obtain an easement involves the legal agreement between the landowner and the non-profit agency. The landowner usually receives a financial incentive, such as tax benefits or payments for giving up the development or other land-use rights. The government or non-profit group that holds the easement is responsible for enforcing the conditions on the landowner.
The voluntary nature of private land conservation allows for landowners to adapt a conservation plan that is tailored to their particular situation. For example, this opportunity allows the landowner to continue running a small family farm, but prevents further commercialization on the property and protects the land. This allows land trusts to be more in tune with needs and desires of communities. When the easements are voluntary and arranged privately, it encourages efficient uses of resources, rather than coercing individuals with the power of the state. Conservation projects that lack local support will most likely not succeed. However, local projects frequently arise and are more successful when they are created by a shared community vision. Community members like to protect natural aspects of their town that define their quality of life.
Public tax incentives are also encouraging conservation. Landowners who otherwise may not have been able to afford to conserve their land are able to with tax incentive support. Policymakers are noticing that private land conservation is a well-leveraged and money-saving alternative to straight out purchasing land in need of protection. Land trusts are more effective in reaching landowners when there is a favorable tax policy as an incentive. The federal tax deductions are a great model of successful public-private partnerships. It gives many landowners a unique opportunity to hold onto and protect their land, while also costing the government a fraction of the cost it would be if the government was to attempt to buy the land outright.
One of the biggest problems land trusts and the government face is that there is no public registration system for conservation easements. The local registry holds on to the recording of the deed, to put prospective owners on notice of the pre-existing servitude. However, this system is inadequate to keep track of the growing number of conservation easements. States should, and need to, create an organized registration system to assist with keeping track of the conservation easements.
Additionally, there are currently no mandatory standards for holders and landowners for enforcement, documentation, and monitoring. Federal law requires easements resulting in tax deductions to document the baseline commitment and resources necessary for the job, but they are often generalized requirements that can be easily neglected by the easement holder. There are currently no requirements that easement holders be accredited or demonstrate financial and institutional capacity to carry out their responsibilities, either. This in turn creates conservation easement holder’s that vary considerably in terms of capacity and commitment to undertake the monitoring and recordkeeping duties that are essential to preserve and ensure the maintenance of conservation easements.
If land trusts can continue to grow, and if they maintain at the current rate of six million conserved acres every five years, this could significantly improve the national and state adaption to climate change. State and local governments need to work together to improve and enhance the conservation easement requirements. By making it easier to navigate, providing a comprehensive plan and strategy for tracking and monitoring easements, it may receive the support of many coastal communities. In turn, this will help the government by creating a lower-cost option to buying out property from owners, and also from having to assist and rebuild any property and communities that are affected by future storms. With sea levels rising, the water and storm power are only going to increase. Communities do not need to abandon their land and retreat completely, but with the assistance of land trusts and government and state policies, it can create a focused, constructive approach to sea level rising.