Habitat leasing as an alternative to affirmative conservation easements in conserving wildlife on private lands

Abstract

In an opinion piece in the Wildlife Society Bulletin, Brown et al. (2023) proposed using affirmative clauses in conservation easements to enhance the wildlife benefits of easements. We agree that conservation easements are foundational tools to achieve wildlife conservation goals on private lands and their use could be improved to increase their impact. Here, we respond to the article to highlight the challenges with affirmative clauses, add nuance to the discussion, and propose an alternative that could achieve the goals proposed by Brown et al. (2023) without the need for affirmative clauses. CONSERVATION EASEMENTS AND AFFIRMATIVE CLAUSESConservation easements are intended to, and largely succeed in, permanently preventing the conversion of land to commercial or residential uses by limiting subdivision and development (Pocewicz et al. 2011). The strength of conservation easements lies in permanent restriction of alternative uses of the land base, which maintains existing habitat by limiting landscape fragmentation and conversion to uses incompatible with wildlife habitat. Because of the perpetual nature of conservation easements, the tool typically incorporates flexibility for landowners to manage the encumbered land in accordance with the best practices of the day (Horton et al. 2017).Affirmative clauses permanently obligate landowners to take certain actions to improve wildlife habitat.Requiring permanent management obligations is often not feasible from a landowner or ecological perspective.Landowners need flexibility to manage their land profitably and in line with contemporary best practices as climate continues to change and habitat shifts. Brown et al. (2023) proposed that land trusts should expand their use of affirmative clauses to increase the biodiversity benefits of conservation easements. While affirmative clauses might result in biodiversity benefits, the practical difficulty of including affirmative clauses outweighs the benefits and makes widespread adoption unlikely.We offer 4 primary practical difficulties to affirmative clauses: (1) affirmative clauses cannot be valued; (2) affirmative clauses may require unfunded ongoing management expenses; (3) affirmative clauses are difficult to monitor and enforce; and (4) conservation easement terms are inflexible and difficult to amend.Conservation easements are valued using a before-and-after appraisal method that is typically based on comparable sales of similar encumbered and unencumbered properties. When determining the value of the easement, appraisers cannot consider management practices, habitat, or biodiversity because of a lack of market signals to justify their financial value (McLaughlin 2016). Logically, landowners would not be willing to transfer a conservation easement for which they will not be fully compensated.

Supplement to conservation easements, not replacement, is the appropriate role of habitat leasing

“…Despite efforts to quantify ecosystem services (Hanley and Spash 1993), the fundamentally nonhuman (and thus nonmarket) nature of ecosystems has led to considerable problems of valuation in addressing problems of environmental degradation (Wolff and Haubrich 2008). Worse, the framing of policy problems and evaluations in purely economic terms creates moral hazard (Balfour et al 2020). It is precisely this philosophy of the utilization of the conservation easement tax deduction that has led to syndicated abuse of the incentive to such a rampant extent that Congressional action was required to address it (Land Trust Alliance 2023), and this fundamental misunderstanding of landowner motivations is also at the root of the concerns raised by the response authors.…”

“…The optimal role of habitat leases in biodiversity protection, then, is not as replacement for but in coordination with affirmative language in easements; leasing could easily be used to achieve short-term improvements in fulfillment of affirmative clauses in conservation easements, and those improvements would then be protected by the easement's perpetual aegis. Further, an approach that integrates habitat leasing as a means for accomplishing the active management prescribed by affirmative easement language addresses the cost concerns raised in both our original article (Brown et al 2023) and Bennett and Brammer's (2023) response. We look forward to further discussion about the opportunity to integrate these conservation tools for the betterment of wildlife habitat.…”

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In a response to our article, Brown, et al (2023), Bennett and Brammer (2023) questioned our recommendation to increase the usage of affirmative language in conservation easements, enumerating their 4 concerns with affirmative clauses in easement language, and recommending habitat leasing as a better alternative. We are in full agreement with the potential value of habitat leasing for biodiversity protection; however, we disagree with its utility as a replacement for affirmative language, as well as the logic underpinning that assertion.

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