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Conservation restriction purposes: Consider climate change impacts

Adaptation Strategies and Actions

Conservation restriction purposes: Consider climate change impacts

Adaptation type: 
Land protection
Planning and prioritization
Policy, laws, and regulations

Strategy:

Ensure that conservation restrictions remain viable as the climate changes

Action

 

Define multiple, clearly articulated purposes for a conservation restriction that will stay relevant as the landscape changes.

Conservation restrictions and purposes
A conservation restriction (or conservation easement) is one of several methods for protecting land.  Conservation restrictions may be permanent or temporary and are legally binding agreements between a landowner and land trust? or other agency designed to protect certain conservation values of a piece of land.  These agreements restrict allowed uses of the land, including future development or subdivision. Conservation restrictions contain purposes that specify the reasons for protecting a site and are used to help manage that property.

The purpose clause is arguably the most important in a conservation restriction as it outlines the conservation values the landowner and easement holder wish to protect and provides the logic for the restricted uses on the land. Purposes can be very specific (to protect a certain species), or they can be more general (to protect open space within the landscape).  These goals are often negotiated by the conservation restriction holder and the landowner when the easement is being finalized.

Applicants seeking to receive federal tax deductions for conservation easements must include one of the following purposes:

  1. The preservation of land for outdoor recreation or education for substantial and regular use for the public;
  2. The protection of the natural habitat of fish, wildlife or plants;
  3. The preservation of open space, including farmland and forestland, where such preservation is for the scenic enjoyment of the general public or is pursuant to a clearly delineated governmental conservation policy and will yield a significant public benefit; or
  4. The preservation of historically important land or a certified historic structure. (26 USC §170(h)(4))

Incorporating climate change impacts
As the landscape changes with climate change, an easement with more specific purposes, such as protecting a particular species or ecological community, may no longer be able to meet some or all of its stated purposes.  For example, a site originally protected to provide habitat for brook trout may no longer meet this purpose if stream temperatures warm and brook trout leave streams present on the site.  This mismatch of conditions presents a conundrum for the conservation restriction holder.  Is the site still valuable and is it still viable if it no longer meets all of its stated purposes?  Will a landowner seeking to break the restriction seize on the fact that the purpose is no longer being met by the land in order to nullify the easement?  In fact, the legal consequences of failure to protect the conservation purposes of an easement could be the loss of a federal tax deduction from the easement donation, and even extinguishment of the easement itself.

A good strategy for protecting land as the climate changes may be to identify multiple purposes and to include purposes related to ecosystem services rather than to specific species or ecological communities. Purposes should still be clearly articulated.  Purposes that are drafted to be intentionally vague to hedge against climate change may do a disservice both to the conservation restriction in the future and to the easement holder who will have to develop a management plan based on less defined conservation purposes.

Examples
Here is an example of two easement purposes, one which may be less resilient as the climate changes (purpose 1) and another which has been rephrased to maintain more flexibility as landscape conditions and species' ranges change (purpose 2).

Purpose 1: "to protect spruce-fir forests and associated wildlife species and the coldwater streams and brook trout habitat this forest supports."

Purpose 2: "to protect the forested landscape that supports a diversity of wildlife species and sustains water quality and stream habitat."

Drafting multiple purposes into a conservation restriction ensures that at least some of the purposes are likely to remain, even if some are diminished or absent in the future.  Drafting multiple purposes, including a very broad purpose, is a good strategy to hedge against changes in the landscape that impact the stated purposes of the restriction.

Finally, if an easement is specifically protected to benefit a species or habitat likely to be impacted by climate change (e.g. brook trout), there should be a plan in place to manage the species in the future as the climate changes.  The plan should outline how the species will be maintained as conditions deteriorate, what actions should be implemented to improve habitat for the species, and what will happen to the easement if it can no longer support the species.  For more on management plans for conservation restrictions, see the resource below. 

 

Target Species, Species Groups, Habitats and Stressors

Habitats and Species Groups: 

Scope and Constraints

Time: 
Ongoing action
Cost: 
Minimal or no cost
Geographical: 
Parcel-scale

Goals

National Fish Wildlife Plants Climate Adaptation Strategy Goal 1: Conserve habitat, diversity, and connectivity
National Fish Wildlife Plants Climate Adaptation Strategy Goal 3: Enhance capacity for management

References

1. Olmsted, James L. 2011.  "The butterfly effect: Conservation easements, climate change, and invasive species?.  Boston College Environmental Affairs Law Review. 38(1): 41-76.

2. Owley, Jessica. 2011. "Conservation easements at the climate change crossroads."Law & Contemporary Problems 74 (2011): 199.

3. http://climatechange.lta.org/get-started/plan/adaptive-easements/

Click link above to view references.

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