Managing Conservation Easements in Perpetuity - Environmental ...

Table 2-1: Legal Risk Spectrum
IRC/Reg Concerns:
impact on conservation
purposes
IRC/Reg Concerns:
impact on conservation
values
IRC/Reg Concerns:
commitment and
resources
IRC/Reg Concerns:
extent of language
change
Private Inurement
Private Benefit
Impermissible
Private Benefit/
Appraisal
Less Risk > More Risk > Highest Risk
Amendment does
not affect conservation
purposes
protected in
perpetuity or
affects in positive
ways only
Amendment has a
beneficial effect
on conservation
values of the
easement land
Land trust
clearly has both
commitment to
protect conservation
purposes
and resources
to enforce
restrictions
Amendment
corrects a scrivener’s
error
No land trust
insider is involved
at all
No financial benefit
at all to any
private party
Full independent
appraisal shows
lack of impermissible
private
benefit
Amendment has a
neutral effect on
conservation values
of the easement
land
Amendment makes
de minimis changes
or clarifications
Land trust insider
involved but
receives no benefit
at all
“Incidental” private
benefit to unrelated
parties; risk grows
by liberal construction
of “incidental”
Appraisal to confirm
lack of impermissible
private benefit is
clearly unnecessary
176
Amendment
affects conservation
purposes
protected in
perpetuity both
positively and
negatively
No net financial
benefit to any
private party;
any benefit
is offset by
detriment
No consideration
of
appraisal to
assess possible
benefit to
private party
Amendment
might harm
conservation
purposes
protected in
perpetuity
Amendment
might benefit
land
trust insider
modestly/
remotely
Possible financial
benefit to a
private party
No appraisal
despite possible
benefit to
private party
Managing Conservation Easements in Perpetuity
Amendment definitely
harms or
negates conservation
purposes
protected in
perpetuity
Amendment has
a negative effect
on conservation
values of the
easement land
Land trust lacks
commitment to
protect conservation
purposes
or resources
to enforce
restrictions
Amendment
alters basic
provisions and
protections
Amendment
clearly benefits
land trust insider
Clear financial
benefit to a
private party
No appraisal
despite clear
benefit to a
private party or
amendment when
appraisal reveals
impermissible
private benefit