Conservation Easements: protection of land and private property

Last week it was reported that Tim Sweeney, co-founder of Epic Games (the studio that brought you Gears of War), established a 7,000 acre conservation easement to protect the Box Creek Wilderness in North Carolina. What exactly is a conservation easement, and how is it used to protect land?

Box Creek Wilderness
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A landowner who wants to protect the land that they own faces a problem. They must ensure that the land is conserved after they no longer own it. If a conservationist landowner dies, their heirs may not be able to maintain the property, and the heirs would be forced to sell it, possibly dividing it up in the process and opening it up to possible development. To solve this problem the landowner may place a conservation easement on all or part of their property. With an easement, the landowner still owns the property, but they give up some of their rights to develop that property. In the process, they engage a qualified organization, usually a land trust or a governmental agency, to ensure that the conservation objectives are met. A conservation easement outlasts the original owner. The easement follows the land in perpetuity, so no one will ever be able to use the land under the easement in a way that is contrary to the conservation objectives.

The right to establish a conservation easement comes from a notion that property ownership consists of a “bundle of rights”1,2 including the right to build upon that land, to exclude others from using land, to extract the mineral, water and biological resources of the land, and many others. Ownership of a piece of land doesn’t necessarily mean you possess all of the rights to that land. Indeed when you mortgage your property, you give up some of your rights to the property to a lender in exchange for a loan. The same thing happens when you place a conservation easement on your land. You give up the right to subdivide the land and the right to develop the property in certain ways to the qualified conservation organization. Each individual conservation easement spells out the rights to the property the landowner retains and the rights that the conservation organization receives, and they are constructed differently for each easement. An easement could allow a landowner to farm or to harvest timber from the property, assuming the landowner does this in a way that is consistent with the conservation objectives of the easement.

Easements are more cost-effective than a conservation organization buying the land outright. The Nature Conservancy, the largest non-profit holder of easements in the United States, acquired 34 percent of its land between 1954 and 2003 through conservation easements, but only 16 percent of its total land-acquisition costs over that period went to easements3. They also provide financial benefits to landowners through tax relief given to landowners who establish an easement.

The Nature Conservancy maintains a good set of resources on easements.

1. Jane B. Baron. 2013. Rescuing the bundle-of-rights metaphor in property law. University of Cincinnati Law Review.
2. James Penner. 1995. The “bundle of rights” picture of property. UCLA Law Review.
3. The Nature Conservancy. Easements 101

United States Army Corps of Engineers v. Hawkes Co., Inc.

Just as I’m starting to learn more about wetland law, the Supreme Court issues an opinion in United States Army Corps of Engineers v. Hawkes Co., Inc. The case turns on what is, to me, a technical question of administrative law, namely when does an agency determination become something that can be appealed? In the end, the resolution of this technical question does not appear, to me, to change wetland law all that much. But the opinion does shed some light on the challenges of wetland conservation within the United States legal framework.

Continue reading “United States Army Corps of Engineers v. Hawkes Co., Inc.”

Lawyers, Swamps and Money

As I mentioned in The Winged Scourge, I have been reading Royal Gardner’s Lawyers, Swamps and Money, a book about American federal wetland protection laws and regulations. I am trying to build up my understanding of the social and political sides of wetland science, and Lawyers, Swamps and Money is a very good read for someone less familiar with the details of U.S. administrative law. Gardner begins by filling in all of the policies and procedures that lead to an agency promulgating a regulation and the legal interpretations of those regulations and procedures that get applied when a case on wetlands goes to court in the United States.

The most surprising thing for me as a wetland scientist is the incredibly convoluted way wetlands are protected at the federal level in the United States. That is, there is not a federal law protecting wetlands explicitly. Instead, we have the Clean Water Act whose section 404 requires developers to obtain a permit for the discharge of dredged or fill material into navigable waters of the United States. The US Army Corps of Engineers issues the permits but the Environmental Protection Agency has authority to review and veto Corps permit decisions if they think the Corps is being too lenient. It is the interpretation of the Clean Water Act of these agencies that includes wetlands in the “navigable waters” and gives the Corps and the EPA the authority to protect wetlands.

But not just any wetlands, as the fractured Supreme Court opinions in Rapanos v. United States make clear. The most important opinion in that case is not Justice Scalia’s plurality opinion, but Justice Kennedy’s concurring opinion which defines wetlands under the protection of the Corps of Engineers as those which possess a “significant nexus” to the truly navigable waters of the United States. This opinion is central to the current regulatory practice of the Corps and EPA. A recent goal of many wetland scientists has been to show that so-called “geographically isolated wetlands” such as prairie potholes, playas and vernal pools do possess a significant nexus to navigable waters (through subsurface hydrological connections) or at least some important function to the landscape which merits their protection under the Clean Water Act.

Fig. 4 from Cohen et al. "Do geographically isolated wetlands influence landscape function?" PNAS, 2016.
Fig. 4 from Cohen et al. “Do geographically isolated wetlands influence landscape function?” PNAS, 2016.

Now to many scientists, the roundabout way of protecting wetlands in the Clean Water Act — not protecting them at all, but instead forcing developers to go through a permitting process only to discharge dredged or fill material into a wetland — and the carefully ambiguous interpretation under the “significant nexus” rule is pointless and confusing. But that’s because scientists don’t often have to make decisions which balance the needs of several interest groups and a large body of administrative law simultaneously. We cannot protect everything we might define as a wetland just because we like wetlands a lot since people do have legitimate needs to convert wetlands to other land uses. So, in a way, the Clean Water Act represents the best we’re going to get, and our role as wetland scientists interested in the conservation of wetlands is to apply what pressure we can to the Corps of Engineers, the Environmental Protection Agency, Congress and the Supreme Court to broaden the legal and regulatory protections available to wetlands.

The other problem I am very interested in goes in the opposite direction. How can wetland scientists build some understanding of this legal and regulatory framework and the decisions of landowners into models of wetland functioning and evolution. I am not entirely sure that is a completely cogent question or if our wetland models really need that kind of information, but I am looking into it and shall report back when I learn more.

The other half of Lawyers, Swamps and Money looks at the “money” part, in particular a tool increasingly used by the Corps of Engineers and the real estate development community to offset the wetland impacts of their decisions: wetland mitigation banking. My thoughts on mitigation banking deserve their own post, so we’ll save those for later.