Managing Conservation Easements in Perpetuity - Environmental ...

Many land trusts create one dedicated
fund for easement stewardship
and a second dedicated fund
for easement defense.
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Funding Easement Defense
As land trusts mature and assume the responsibility for monitoring
and enforcing larger numbers of conservation easements, they realize
that they need to budget for the number of long-term relationships
created by their easements, not the number of initial easements.
In other words, land trusts should plan for the perpetual stewardship
of each parcel permitted to be created under each easement they hold,
because all permitted subdivisions will add successor owners who must
be contacted and educated, and who will want to exercise reserved
rights to build houses, conduct timber harvests or engage in agriculture
activities — all of which must be monitored and all of which may
lead to easement amendment requests and/or easement violations.
In addition, each relationship carries with it the need for landowner
support to interpret the conservation easement, answer inquiries, visit
the land and follow up with recordkeeping. With more relationships
come more opportunities for misunderstandings and mistakes that
lead to violations.
Stewardship fund calculations, therefore, should be based upon the
number of easement relationships an easement will create for the land
trust. Dedicated stewardship funds are intended to cover all the costs
of managing an easement in perpetuity, including annual monitoring,
easement interpretation, landowner outreach and education, responding
to amendment requests and pursuing easement enforcement or
defense actions.
Many land trusts plan for major easement defense funding to come
from the principal of their dedicated stewardship fund. However, land
trusts should plan for and take action to replenish the fund if it is
drawn down to support easement defense. If an organization finds
itself in the unenviable position of defending two or more violations
simultaneously, it might jeopardize the entire easement stewardship
program by depleting the overall fund. Many land trusts address this
challenge by creating a separate fund for legal defense.
Land trusts that have a dedicated legal defense fund in addition to a
dedicated stewardship fund will usually fund both for each easement
they accept. A legal defense fund may not be used for many years, so the
fund’s earning is reinvested, allowing the fund to grow until it is needed.
To make this plan successful, a land trust should adopt investment and
fund management policies in accordance with Practice 6F to ensure
Managing Conservation Easements in Perpetuity