Develop Conservation Easements that Adapt to Climate Change

Drafting conservation easements for long-term success requires consideration of many factors, including potential climate change impacts. Conservation easements should be designed to be adaptable, thus allowing managers to respond in a timely manner to changing conditions and conservation values, which may result from climate change or other natural- or man-made-causes.

Recommendations for Developing Adaptable Conservation Easements

The following recommendations will help land trust managers develop conservation easements that are adaptable and resilient, and thus more likely to retain their conservation values in the face of climate change.

Identify Conservation Values that Will Endure

Be clear about the purposes of the easement. Identify the conservation values that warrant protection, link easement restrictions to the protection of these values, determine which values might be impacted by climate change, and develop a management plan that will help conserve those values over time. Scenario planning may be useful here.

Provide Comprehensive Recitals

Provide comprehensive and detailed, project-specific background information. Ensure that the reader (eg. a judge in an enforcement action) will be able to readily understand the restrictions, conservation values and importance of the easement. This is especially important if the restriction or reserved right is unusual.

Provide Sufficient Flexibility

Conditions and needs may change with time, especially as a result of climate change. Do not assume that environmental conditions, social pressure, or resource needs will remain constant. Discuss the need for flexibility with the easement grantor, and determine how much flexibility successor landowners will need in order to adequately respond to climate change. Distinguish between restrictions that will be strictly applied and those that allow for flexibility in interpretation. Then, negotiate and draft the easement so that it incorporates the necessary flexibility, while continuing to protect the land’s conservation values in perpetuity. Scenario planning may be useful here.

Strive for Clarity

Clarity and lack of ambiguity make it easier for a landowner to understand and accept easement terms, and for a land trust to monitor and enforce those terms. Be clear about what an easement prohibits and permits, what approvals an owner must seek before undertaking certain activities, and what notice(s) the owner must provide to the holder under certain situations.

Define Specific Terms

Review the draft easement for terms that should be defined (in the easement, or by reference to a different source). Ensure all terms are consistent with their definitions.

Consider Performance Standards

Performance standards may be appropriate in some circumstances, because they offer a flexible goal. In these cases, combine prescriptive and performance standards so that easement goals are more likely to be met as conditions change due to climate change and/or emerging scientific knowledge or technological capabilities. Determine whether some reserved rights should float based on changing best practices in agriculture, forestry or land management. If so, define the criteria for this in the easement, identify a recognized source of rules which will guide this change, and specify the path for land trust approval of all changes. Include a copy of the rules with the management plan.

Consider Including Discretionary Approval or Consent Provisions – Specify Amendment Criteria and Procedures

Conditions will change with time. Prevent easement obsolescence and allow for the adaptation to changing conditions by defining the criteria and procedures for amending or modifying the easement.

Determine Whether Easement Requirements That Look to Law Should Be Fixed to Current Law

If so, attach a copy of the law as an exhibit. If the easement is ever challenged in the future, this will provide proof of the relevant law(s) at the time of easement creation.

Don’t Restrict Unnecessarily

Draft restrictions so they support the primary purpose(s) of the easement. Remember that conservation easements are limited interests in land, and are best used to prevent harmful activities rather than to prescribe affirmative land management activities. If the restrictions strip most or all economic value from the land, include strong explanatory recitals so that all the parties understand the rationale for the restriction.

Recognize That Land May Change

Landscape features, such as shorelines and river channels, as well as ecological conditions, may change over time with temperature, water and other influences. Flexible management plans and zone boundaries may help. Scenario planning may be useful here.

Carefully define how the easement can be terminated or modified.
Provide for easement termination or modification contrary to its stated purposes only in accordance with all state and federal laws, court approval and full proportional compensation of the easement holder, to be used for similar conservation purposes.

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