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A conse rvation e asement is a negotiated contract between a landowner and either a nonprofit organization or a government entity. In exchange for giving up some portion of a property’s development rights, the value of the property is lessened and the landowner receives an economic benefit. This benefit results usually in lower property taxes, often in a reduction of estate taxes, and if donated, may also qualify for an income tax benefit. Because conservation easements have been viewed as providing a flexible and nonregulatory mechanism for achieving conservation goals, they have increasingly become a major tool used by land trusts and governments to protect land.
As legal agreements, conservation easements derive from the “bundle of rights” property concept that allows a portion of rights to be separated from the whole and held by another entity. Unlike other easement types, which permit the holder to do something, conservation easements allow the holder to prevent particular uses or types of uses. As a result, the separated rights are “retired” and become encumbrances on the property deed that travel with the land and bind future property owners. Easements may be written for a specified period of time, but are typically written to last “in perpetuity.” The specifics of each conservation easement and the piece of land to which it pertains are generally determined on a case-by-case basis through negotiations between the landowner and the organization. Land trusts tend to tailor conservation easements to individual landowner needs, while government agencies have tended to use a “one-size fits all” approach.
Emergence of Easements
In the United States, conservation easements emerged as a market-and incentives-based alternative to the use of regulatory tools, such as outright acquisition through the use of eminent domain or zoning-related land-use restrictions. First used in Boston, Massachusetts, in the 1880s as part of Frederick Law Olmsted’s park design, they were also important to the creation of a number of scenic parkways. However, it is their use by nongovernmental organizations, such as land trusts, to meet diverse conservation goals that has been most celebrated. Over the past century, conservation easements have become one of the most widely used tools to protect land that is valued for its ecological significance, including the presence of wetlands, or as wildlife or endangered species habitat; aesthetic importance or scenic beauty; for agricultural or forestry production; beaches and other recreational features; or historical significance.
The use of conservation easements, both inside and outside the United States, is growing. Between the late 1950s, when this conservation tool first became more widely known, and 2003, there were approximately 17,800 conservation easements covering a total of approximately 7 million acres in the United States. Much of this activity occurred after 1998. Likewise, conservation easements have been used elsewhere, including in Canada, Costa Rica, and Mexico. They are also being advocated as a possible solution to conservation issues in South America and beyond.
There have been a number of concerns about the growing use of conservation easements, which have potentially important implications for their future use. First, it is unclear how well existing conservation easements contribute to emerging conservation goals, particularly the creation of integrated networks of protected areas that are seen as essential to biodiversity conservation and habitat protection. In particular, this concern about efficacy derives from the application of ecological principles to easement design. On one hand, this concern centers on the technical adequacy of the management requirements for individual properties and whether these sufficiently address issues of ecological change. On the other hand, conservation scientists question the extent to which the pattern of specific parcels is sufficient to conserve an area’s biodiversity or natural resources. Taken together, these concerns signal the potential need for greater government involvement in ecological conservation. Second, conservation easements have been lauded as voluntary and nongovernmental conservation interventions, but several challenges to this view are emerging. Because they rely heavily on the economic incentives created by tax relief, they are in fact expenditures of public funds. In some cases, government agencies may even provide funds directly to private groups that negotiate conservation easements. In both cases, questions have been raised about the appropriateness of spending public funds on these activities. Third, questions about who benefits from conservation easements and issues of equity are being raised. U.S. tax rules have tended to limit the economic benefits associated with easements in ways that disproportionately benefit higher income landowners. This issue led to congressional hearings on the practice in 2005.
- Richard Brewer, Conservancy: The Land Trust Movement in America (University of New England Press, 2003);
- Janet Diehl, The Conservation Easement Handbook (Land Trust Alliance, 1988);
- Julie Ann Gustanski and Roderick H. Squires, Protecting the Land: Conservation Easements Past, Present, and Future (Island Press, 2000);
- Adina Merenlender, Lynn Huntsinger, Greg Guthey, and Sally Fairfax, “Land Trusts and Conservation Easements: Who Is Conserving What for Whom?” Conservation Biology (v.10, 2002);
- Leigh Raymond and Sally Fairfax, “The ‘Shift to Privatization’ in Land Conservation: A Cautionary Essay,” Natural Resources Journal (v.42, 2000).