Conservation Easements and Wetland Ordinances

March 1, 2009

Wetlands need all the protection they can get, and conservation easements and wetland ordinances are two good ways to protect them.

Ordinances are laws adopted by municipalities and counties to cover matters that aren’t already covered by state or federal laws. They specify the way or ways land may be used in particular areas.

“Having an ordinance allows you to have a consistent framework to base a decision on,” says Brad Robole, director of Washburn County’s Planning, Land and Resource Management Department in Wisconsin. “The consistency is important. It takes out the possibility of judgment calls.”

In general, federal and state regulations protect isolated wetlands that are larger than 5 acres, and wetlands of any size that are connected to other bodies of water, such as rivers and lakes. Local governments may build on these regulations with an ordinance to protect additional wetlands.

According to the Michigan Clinton River Watershed Council Web site, wetland ordinances are generally composed of these elements: a statement of the goals of the ordinance, the definition of a wetland, a wetland inventory map, a list of permitted and prohibited uses of the wetland, the standards that determine whether a use that requires a permit will be approved or not, information about the permitting process, and the penalties for violating the ordinance.

On the other hand, conservation easements can take many forms, says Halsey Spruance, director of public relations for the Brandywine Conservancy in Pennsylvania. What they have in common is that they’re all voluntary, legally binding agreements between a landowner and either a nonprofit organization, such as a conservancy or a land trust; or a local governmental agency, which undertakes to protect undeveloped land in perpetuity.

“The fastest growing trend in the conservation world is conservation easements,” says Rick Gauger, executive director of the West Wisconsin Land Trust.

Landowners may sell all or part of their land “in fee simple” to the entity, in which case the entity owns both the land and the right to develop it. Landowners also may donate both the land and the right to develop it.

When they either sell or donate the property to one of these entities, the entity protects it from being developed in the future. They often restore the land’s native vegetation and habitat. They may open it to the public, as a park and nature trails, or for education and research purposes.

Landowners also may donate or sell only the right to develop the property to the nonprofit or agency. In this case, the entity places a conservation easement on the property and records the easement in the property’s title. The landowners still own the property itself and may live on it or sell it on the open market. A buyer buys the land without the development rights to it.

The terms of easements may be negotiated between the entity and the landowner. Although landowners give up the right to use the land for certain purposes–for example, allowing cattle to cross the streams–they may be able to use it for others, such as harvesting timber. The more rights the landowner wants to keep, though, the less the easement is worth.

The entity manages the easement, which includes taking legal action to enforce its terms if necessary. Governmental agencies may hand over the management to a nonprofit organization.

While landowners who donate their land can get tax breaks, not all of them are motivated by financial reasons. Spruance says, “An emotional attachment to the land can be the most powerful motive of all.”

The tax advantages of donating their land can be significant, though. Conservation easements lower the value of the land because it can never be developed. The IRS reduces property, income, estate, and capital gains taxes to compensate landowners. If the landowners give the nonprofit an endowment to manage the land, that’s tax deductible, too.

“It makes a lot of sense for estate planning,” Spruance says, especially for farmers whose land may have increased in value to the point that the heirs can’t afford to keep the farm going.

Alachua County, FL, and Washburn County, WI, protect wetlands with both conservation easements and ordinances. The Brandywine Conservancy is a nonprofit organization that grew from a need to protect a watershed.

Alachua County, FL
The 634,000-acre Alachua County includes the University of Florida and urban, suburban, and rural areas. Much of it is underwater: Altogether the county has 93,000 acres of swamp, marsh, and open water. Its main river, the Santa Fe, is only partially navigable.

In 2000, voters approved the creation of the Alachua County Forever Land Conservation program, which enabled the county to buy land for conservation purposes. It uses funds raised through property taxes: $29 million, according to the county’s Web site.

“The community decided the environmentally significant lands, especially wetlands, were worth protecting,” says Ramesh Buch, program manager for Alachua County Forever.

Although the federal and state governments already protect wetlands, “Landowners are resistant to the heavy hand of government regulation,” Buch says. “Easements appeal to people more. An easement is a partnership.”

The program uses a scoring system to determine the importance of acquiring a property. It includes criteria such as whether the property serves a groundwater recharge or flood management function, and whether conserving the property would protect or improve surface water quality.

Most of the land the county acquires is fairly pristine, Buch says. Some landowners donate it to the county for the tax benefits, but most of them sell. All are motivated by conservation.

When they sell the property to the county outright, or for less than its fair market value, which is considered part donation and part sale, the county has full control in deciding how best to protect it. It may restore the land to its native state, or allow limited uses on it. In rare and exceptional cases, the county may even resell it.

If the county buys land that is being farmed, for example, Buch says, “The county may put in an easement that allows farming, and sell the property to another farmer.”

Landowners can give the county the first right of refusal to buy the land. Owners who decide to sell on the open market can add a conservation easement to the deed first.

When landowners sell only the development rights, they and the county negotiate how the land will be used. They may keep the right to hunt and exclude the public from it, Buch says. They may live on it, build a house, and have a garden.

“Our process is biased toward “˜big, wild, and connected,'” he says. “We try to extend easements as much as possible. If they want to develop a portion of the entire property, we’ll carve out that area as long as it doesn’t have a big impact.”

The program acquires about 2,000 acres every year, he says. For the most part the county manages the land, restoring it over the years by removing invasive species, prescribed burning and thinning pine plantations, and ensuring that the terms of the easements are being kept.

Alachua County also has a stormwater ordinance, says Michael Drummond, senior environmental planner for the Environmental Protection Department. The ordinance is in the county’s Comprehensive Plan, which came into effect in the early 1990s and has just been revised.

“It’s much more comprehensive and complete,” Drummond says. “We know it’s a huge improvement.”

Ordinances are useful because they bring certain projects under review, Drummond says, and they’re more broadly applicable than easements. The county’s ordinance requires buffer zones to extend as far as 75 feet from most surface waters and wetlands, and up to 150 feet from “Outstanding Florida Waters,” which are considered worthy of special protection.

Landowners are prohibited from clearing shorelines and riparian wetlands for beaches and access unless the impact on the buffer zone is minimal. Activities such as agriculture and timber are allowed as long as landowners use best management practices.

In general, development is allowed as long as it doesn’t exceed half an acre for every 10 acres of buffer area, landowners have taken every reasonable step to avoid or minimize adverse impact to the wetland and the buffer, and they have mitigated for any adverse impact.

“A subdivision has to go through a fairly strenuous process,” Drummond says. “The bottom line of the ordinance is [leaving] the buffer zone alone.”

Brandywine Conservancy
Often municipalities find themselves working with a land trust or a conservancy, such as the Brandywine Conservancy in Chadds Ford, PA.

The Conservancy helps landowners place their land under conservation easements and administers the easements. It works with almost 100 federal, state, county, and municipal agencies, and, at the request of a municipality, with developers.

“The mission of the Conservancy is to protect water quality and quantity,” says Halsey Spruance, director of public relations for the Conservancy. It also helps save open space and preserves historic properties.

It was founded in 1967 by three neighbors who bought a meadow on the floodplain of the Brandywine River. The land had come up for auction, and word went around that it would be sold to developers. Development would have had a devastating impact on the river and on the cultural values of the Chadds Ford area, says Spruance.

Today, the Brandywine Conservancy protects more than 40,000 acres, roughly 20% of the 208,000 acres of the watershed, Spruance says, as well as some land beyond it. The watershed encompasses suburban and rural land in Pennsylvania and Delaware, as well as the city of Wilmington, where the Brandywine River empties into the Delaware River.

The Conservancy’s Environmental Management Center preserves the area’s natural resources. It has three programs: Land Stewardship, Conservation Design, and Municipal Assistance.

“The Environmental Management Center has grown to include professional planners, landscape architects, and ecologists,” says John Theilacker, associate director of the Center’s Municipal Assistance Program. “It’s supported almost evenly by the foundation, endowments, and consulting fees.”

Land Stewardship Program
The Center’s Land Stewardship Program helps landowners place conservation easements on their land and manages the easements. It helps create woodland and meadow management programs, as well as plan improvements for streams and ponds and to control soil erosion.

“We tend to focus the majority of our efforts on rural areas,” Spruance says. “There isn’t as much opportunity in developed areas.”

There are exceptions, however. Just 15 miles from the center of Philadelphia, an entire 150-acre property of meadows, marshes, woods, the meandering Darby Creek, and an 18th century village was donated to the conservancy in 1998. Now called the Waterloo Mills Preserve, it’s open to members of the Conservancy, as well as to local schools and other educational institutions.

Very often, landowners donate easements on only part of their land to the Conservancy. A high percentage involves some form of riparian land or wetland, Spruance says. “What we try to do when working with farmers is to set up an easement that protects between 20 and 60 feet on each side of the stream, and encourage them to plant native trees.”

Farmers can get help planting natives from the Conservation Reserve Enhancement Program (CREP), which is administered by the USDA, Theilacker says. It pays farmers to plant trees along streams, including on easements.

Property owners who donate easements often give the Conservancy an endowment as well, to help the Conservancy manage the easements over the long term, Spruance says. This includes helping defend the terms of the easement in the rare court cases that come up.

“There’s usually never any problem with the original donor,” he says. And because the easement is recorded in the property’s title, buyers should always be aware that the land has an easement on it. But as properties are sold, the Conservancy is finding it necessary to educate new owners about the requirements.

Conservation Design Program
The Conservancy also has two programs that help municipalities address growth management issues. One program assists municipalities with the review of development plans; the other assists municipalities in the development of long-range plans (such as comprehensive plans and open space plans) and regulatory ordinances (such as zoning and subdivision ordinances).

“We realized many years ago that easements are only one of many tools to achieve our goal. It’s also important to convince municipalities that their objectives and ours are the same,” Theilacker says.

The Center’s Conservation Design staff look at every aspect of a site slated for development: its resources, its need for protection, and any ordinances that are in effect. Then they consider the potential impacts of the development and what it would achieve. They may suggest design alternatives and conditions for development approval.

Municipal Assistance Program
The Municipal Assistance Program is a consulting service, Theilacker says.

“We contract with municipalities–as well as townships, boroughs, and counties–on a fee basis, and write plans, regulations, and ordinances that suggest to the municipal officials the establishment of stream protection buffers, for example.” This could also include reestablishing buffers where farm fields are converted to residential subdivisions.

One way the program is different from the services of private consultants, he says, is that most of the work comes through people who know of the staff’s expertise, so there’s little need for direct marketing.

There are other differences as well.

“We’re different because we’re a nonprofit, so no profit is built into our fee,” Theilacker says. “Some municipalities feel comfortable that we don’t play both sides of the fence. When we’re at the table, we represent municipalities’ interests, not developers’.”

Roughly half the program’s municipal assistance work relates to updating ordinances. The staff may recommend that a municipality change its ordinance, he says, because ordinances can limit creativity in achieving natural or cultural resource protection objectives.

Ordinances are only temporary solutions. They hold off development while the Conservancy works with landowners.

“Ordinances can be changed if the political makeup changes,” Theilacker says. “Courts can change. Easements are a permanent solution.”

Washburn County, WI
Washburn County, WI, has nearly 1,000 lakes, many of them land-locked remnants of the Ice Age; three navigable rivers; and countless smaller and even unnamed waterways. In total, the county has 860 miles of shoreline.

Aside from the city of Shell Lake, most areas of the county are remote, and property owners are likely to have lakeside vacation homes, says Brad Robole, director of the county’s Planning, Land, and Resource Management Department. The county has conservation easements and a shoreland ordinance.

“Easements and ordinances can work well together,” Robole says. “Easements are good for certain sites, especially if lakes aren’t developed as heavily. In highly developed areas, it’s better to have an ordinance to fall back on.”

The West Wisconsin Land Trust acquired its first easement in Washburn County in 2002 and now protects 300 acres, including more than a mile and a half of wild lake shoreline. The trust began in 1988 and protects more than 20,000 acres altogether.

The main objective of the trust is to protect water quality from soil erosion and runoff, and to protect the shore zone on land and in the water, says Gauger, the executive director. This includes keeping fallen trees in the water for reptile and amphibian habitat.

Although the trust buys land, most of its work is with conservation easements, which are at least 100 feet wide around bodies of water, and sometimes as much as 300 feet. Staff members do restoration work when they have funding for it. They also educate landowners and provide restoration consultation.

“We’ve had landowners who didn’t understand [they had to keep fallen trees in the water], and cleared the water for 100 feet,” Gauger says. “We had to tell them they had to replace the trees. They had to take whole trees and place them in the water. It worked out just fine. Once they understood, they were glad to comply.”

They’ve had very few problems with landowners, he says.

“Of 150 easements, there has been probably a total of three problems. All were resolved to the satisfaction of everyone involved without litigation.”

Washburn County’s shoreland ordinance was adopted in 1998, and protects fish and wildlife habitat, water quality, the shore cover, and the area’s natural beauty. It requires property owners to keep native vegetation between the shoreline and impervious areas beyond the buffer zone, Robole says. They aren’t allowed to remove trees, shrubs, or ground cover, or disturb the land, except to establish a 30-foot-wide corridor for access to the shore and for viewing the lake.

“Property owners are basically supposed to stay off the buffer zone,” he says.

The size of the buffer zone depends on the amount of development around the lake. “When the area is already developed, we’ve lost the ability to protect it. As lakes progress to more of a wild state, the buffer zone increases.”

For Class I lakes, the most developed, the buffer zone extends 75 feet in from the high water mark. Class II and III lakes both have buffer zones of 100 feet. But Class III lakes, the least developed, also have a minimum lot width of 300 feet, which reduces the density of homes.

If a home is inside the buffer zone and predates the ordinance, the property owners are allowed to maintain and repair it, he says. But if they want to expand or otherwise improve it, they’re required to get a permit and mitigate for the buffer area that is lost. Mitigation can include planting native species and implementing erosion and stormwater runoff control measures.

Ordinances Versus Easements
Landowners do try to get around ordinances, though, and this is their weak point.

One problem with ordinances, says Drummond of Alachua County, is that citizens who don’t have expertise in them enforce them.

“It really does require a strong effort to make them pay off,” Robole adds. “In order to be effective, they require aggressive enforcement.” And the county doesn’t always win when it takes violators to court, he adds. If there’s a technicality, the judge can throw the case out.

It may be only a minor clerical error, where the language in the ordinance wasn’t done correctly. It can be easily fixed, he says, but then each town in the county has to change the wording in its own documents. Instead, some decide to opt out of the county zoning altogether.

Buch of Alachua County says another problem is that “Ordinances can be undone at any given meeting. In the last 25 years, easements have come into their own.”

Conservation easements can be undone, too, though, in extremely rare cases. Drummond says, “Easements can be changed upon the agreement of the grantor [the current owner of the land] and the grantee [the entity managing it].

“The solution,” he says, “is to use easements and ordinances together.”

About the Author

Janet Aird

Janet Aird is a writer specializing in agricultural and landscaping topics.

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