Hi everyone,

I worked in the regulated community for a few years and have the mind-set that if there is a question... refer to the guidance document, local reg, permitting agency etc etc etc. But now I am working with a local Land Conservation organization working hard to protect important lands in my little corner of the world.

One way we protect land is through Conservation Easements (CE) which are record with the Register of Deeds Office and stay with the Deed in perpetuity. With these CEs the landowner continue to own the fee on the property. However, in exchange for generous tax benefits they agree to major limits on property usage. The process is strictly voluntary and details of the CE are negotiated between the land trust and the property owner(s). Sometimes these CEs are purchase by the land trust, sometimes they are donate.... but that is more than needed to know for my question.

Our CEs have a standard statement that the landowner will not disturb any areas within three-hundred (300) feet of any stream or wetland. But the CE never defines what classifies a stream or wetland. Is this possibly a hole in the CE?

Or more specifically........ can we consider streams and wetlands that may not fall under the ACOE definition.

Sean,

I believe that it depends on how you define it in your Conservation Easement. You can tie it to the federal Army Corp definition, or any state definitions. I assume you'd have to follow the Corp and State regulations even without a Conservation Easement, so I'm not sure what you gain there. However, you should probably be defining these conservation areas broader than the federal and state regulators to make the CE worthwhile.

For instance, protect all streams and wetlands on the property regardless of the Army Corps Jurisdictional Determination. Increase buffers: if the state wants a 100 foot buffer on the wetland, make it a 300 foot buffer. I'm pretty sure you can make the agreement whatever you want as long as the owner agrees to sell the easement. And yes, not defining the streams and wetlands does leave a bit of a hole, it'd be simple enough to tie it state or federal definitions (usually the state definitions are broader, thus limiting development more).

Specifically to your last question. Yes, please consider all streams and wetlands regardless of ACOE definitions. I recommend defining and mapping any sensitive natural resources early in the negotiations so everyone knows which areas and how much acreage your talking about tying up in the CE.

Good Luck,
Jason

Sean:

I agree with Jason regarding definining what a wetland is and then providing the mapping (probably should be signed/sealed by a registered land surveyor) to support the areas protected within the easement instrument. Taking this approach would reduce or eliminate any questions on where these areas are and the sizes of these areas. Using submeter GPS may be less expensive, but cumulatively you may loose some acreage in the area protected. I would recommend classifying the wetlands/streams using the Cowardin system and include this characterization in the instrument (perhaps as an attachment or figure). The classification and including it in the instrument provides a snapshot of what was out there and also protects the landowner/responsible parties.

The Cowardin system of classifying wetlands may be a broadest definition that is nationally recognized and accepted. There may be the desire to use a state-based system (like what is done in Florida, for instance) if it best suits the conservation of the resource. That's a case by case basis decision.

I would also make sure the CE contains language indicating that it is "running with the land" and it applies to all successors, assigns, etc. That language might be in there already, but if not, I would contact your legal staff for the specific language.

I hope this helps -- great information from Jason and I wish you the best of luck!!

Dave

Sean Bloom,
I agree with what Dave and Jason have stated above. In particular answer to your question, you can define a stream and wetlands any way you want. Conservation Easements are contracts or agreements. And you should include a definition (by reference) so that there is no room for conflict in 10 years when someone else owns the property and wants to develop the land.

In that light, I would caution against using changeable features such as streams and wetlands. Streams can change course. A building site that is 300’ from a stream today might be only 250’ away after the next big storm. Wetland boundaries can change. More immediately, a boundary might be indistinct, and/or there may be room for disagreement of where the boundary is, which would make measuring 300’ from the boundary difficult.

As Dave Young suggests, map the boundaries of the easement and have the easement boundaries written into the CE as opposed to setbacks from features.

A more common way of putting the appropriate regulatory language in the CE is a separate line item requirement that "all local, state, and federal regulations must be followed, especially in regards to potentially regulated resources including, but not exclusively, forests, streams, and wetlands."

I am working on a CE issue now where the CE allows for the clearing of undergrowth on the property (why? I don't know). A rep from the land trust holding the CE visited the site and confirmed this for the landowner. However, this is in total violation of the County's tidal buffer regulations, which require a buffer management plan/permit to manipulate vegetation in a forested buffer within xx feet of a tidal water.

I would like to reemphasize the distiction that Jason made regarding a "regulatory wetland" and a "jurisdictional wetland". When I do a wetland delineation I map out all wetlands defined by the regulations (i.e., based on vegetation, hydrology, soils) regardless of whether they are "jurisdictional" or not.

The jurisdictional wetlands are covered by Federal/State/Local regulations, however variable and uncertain that may be.

I would think a good approach would be to define all the wetlands and streams in the CE and include a description of their values. That way, if for example the future land owner wants to put a dam/pond in a drainage channel that would block fish, the impact of that action is clearly identifiable as a damage to the value, and prohibited.

With a definition of functions, that gives the land owner a little play with wetlands and streams. For example, suppose the owner wants to build a road that impacts wetlands. If they can do an on-site mitigation by creating equivalent wetland on-site, then the action could be considered acceptable.

I don't deal with CE's, but I see the complexity of what you are concerned with. Forever is a long time for the CE to remain effective.

More and more landowners are learning how to rely on relevant court decisions to determine jurisdictional boundaries, and then designing projects to avoid triggering a wetlands permit. In such cases a landowner may wish to set aside land for conservation, but after avoiding a permit it may not be prudent to ask the Corps to approve a conservation easement. In the absence of a permit, landowners may legally reserve a conservation easement without contacting or dealing with the agencies, and in most cases this would be a more efficient and less expensive approach.

We are actually in the middle of doing something
very similar to what Johnny has suggested -- we
have petitioned the Fairbanks North Star Borough
(same as a County level of government) for a rezone of a 50' setback on either side of our slough from Rural Agricultural to Outdoor Space
Buffer Zone. After much research, it seemed like
this was the easiest and most feasible way to protect the slough, with enforcement through the
already established Borough zoning codes. This
also allowed more flexibility than a Conservation Easement in the eventuality that,
for example, in the future we wanted to build a footbridge across the slough -- we could go back to the Borough and apply for a permit to do so.

The final hearing is next week. We did run into a big problem, though, with the State Dept. of Natural Resources -- because the slough setback
is also a Public Access Easement and the AK-DNR
seems to feel that public access automatically includes motorized public access (think dirt bikes and 4-wheelers). After numerous hearings
which involved me quoting their own regulations back at them, they finally capitulated and we will be allowed to restrict access to pedestrian only, on minimally constructed footpaths.

We did consider doing a Deed Restriction as per
ACOE standards, which was quite draconian and
rather scary since any violations would come back to us, even if we had no control over said
violation. The Outdoor Space Buffer Zone serves
our needs much better. Once that zone is in place, we will add a 'transition zone' of another 50-75 feet for further protection.

There are many ways to setup a CE without involving the COE. The only time I can think of that the COE has any input on CEs is if you are setting up a mitigation bank or happen to be permitting a project that has CEs within the property.

To answer the OP. Since there is no definition for streams and wetlands, and if the client wishes to maximize the tax benefits, I would say include everything that would qualify as a wetland regardless of 404/401 jurisdiction or value. I would map out every ephemeral channel until it disappears (no OHW). If you get the same credits accross the board why not? Then in planning one can determine the best approach to maximize tax credits while creating a CE that doesn't lock the property from other uses.

In my experience some CE programs require enchancement of buffers and and protected areas (ie. wetlands) aside from just planting additional trees and fencing. Often there are conditions in place specifying the removal of invasive species and re-veg with native. This can be a daunting task in areas that are being converted from farm or pasture to forested. Alot of thought needs to go into the management of these areas for the life of the CE.