When does stewardship happen?
It has been said that land trusts and conservancies are more stewardship than securement organizations given the amount of time and effort that goes into stewarding a property over the life of a conservation easement. Stewardship refers to most of the activities that happen after a conservation easement is signed and registered. When you consider that most conservation easements are written for perpetuity or at least multiple decades the importance of stewardship is clear.
The main purpose of stewardship efforts is to ensure the conservation features of the property are being protected as per the conservation easement agreement. There are the formal and legal mechanisms involved with this but at the base of all private land conservation is people. As such stewardship has two main components: monitoring and landowner relationships.
Stewardship actually starts before the conservation easement is finalized. It formally starts with the creation of the baseline documentation report. The baseline documentation report (BDR) is an initial biophysical assessment of the property with special consideration to the restrictions and management requirements described in the conservation easement. The BDR provides a picture of the property at the time the easement is registered and may describe some longer term conservation objectives for the property. The landowner and the grantee sign a cover page indicating agreement with the BDR contents. The BDR is generally supplemented by a management plan that the landowner and grantee develop together.
Monitoring generally begins the year after the conservation easement has been signed and entails a site visit during which the current state of the property is compared to the baseline, the conservation easement restrictions and management plan. Site visits occur on a regular cycle – some organizations will visit annually at the same time of year, others will alternate seasons so they can capture a broader view of the property over time, and others will physically visit the property every 2 - 5 years while using aerial viewing or other mechanism for the interim years.
The number of visits and the depth of information collected are dependent on the complexity of the conservation easement. A monitoring visit to a property with a conservation easement that requires a specific riparian health rating will be quite thorough with the riparian health assessment procedure being followed. A conservation easement that doesn’t allow building or subdivision but has no other restrictions can be very quick, checking with the municipal subdivision request records and a driving by to make sure there are no buildings.
Landowners and Stewardship
Even though monitoring generally provides a formal contact point between the grantee and the landowner each year, most organizations make themselves available to landowners year-round. A copy of each monitoring report is often provided to landowners, some organizations will also review the report with the landowner. Many organization invite landowners to organization events and/or host volunteer stewardship events on site (e.g., weed-picking, fencing, etc.) to help the landowner with management.
How does stewardship reduce risk?
Actions that go against the restrictions or the management requirements of a conservation easement present a risk to integrity and longevity of the conservation easement. One of the promises the grantee makes to the landowner by entering into a conservation easement is that they will protect the conservation values on the property. Regular, consistent and well documented monitoring and maintaining good landowner relations help to do that over time.
When there are violations or challenges against a conservation easement they are generally (although not always) associated with second or third generation landowners. Often the new landowner is simply not aware their action is a problem – this highlights the value of a qualified organization having a new landowner policy that describes a process for introducing the new landowner to the conservation easements. Landowners should be made aware of the conservation easement by their lawyer through the purchase process but the qualified organization can provide so much more specific information about what the conservation easement means and what will be involved for the new landowner.
In a situation where a violation was intentional the conservation easement will provide the mediation / arbitration process for the parties to go through, if this doesn’t work the parties may find themselves in court. Throughout this process, a regularly collected record of consistent, well documented monitoring reports will help show the conservation values intended for protection.
Does stewardship cost money?
Stewardship is an ongoing cost for qualified organizations. Stewardship can be done by volunteers but if there is a concern or a known infringement it is better a staff person or other position of authority contact the landowner. Also the value of the volunteer work should be tracked and recorded in case there comes a time when volunteers can no longer do it. The cost of monitoring varies based on the number and complexity of restrictions and the distance of travel required. Qualified organizations should be prepared for these costs (see stewardship calculator in resources); many set up endowment funds that provide annual amounts for monitoring. It is a good idea to raise or allocate these funds when the conservation easement is negotiated. Some organizations ask the landowner if they can provide or help raise such funds for the stewardship of the organization.
Another cost that is less common but can be very expensive is legal defense funds. These are required if an infringement or violation cannot be resolved through the mediation/arbitration process. The intention of a good stewardship program is that risks of violations are reduced and legal defense is not necessary, but history has shown there will be need for some legal defense at some point in time. Therefore it is prudent of organizations for be prepared. Research out of the United States in 2005 showed the range of litigation casts were $25,000 - $250,000 with an average historic cost of all claims at $38,000, including those that did not go to a full trial. The Land Trust Alliance in the United States recommends a minimum legal defense fund of $50,000, adding an extra $1,500 - $3,000 for each new project. Each organization should develop a legal defence policy. Landowners when determining which qualified organization to work with may want to ask about how prepared they are for legal challenges in the future.
A worksheet template for qualified organizations to calculate the costs of stewarding a conservation easement.
Policy to support stewardship
Qualified organizations should have well documented and transparent policy and protocols related to monitoring, infringements and subsequent enforcement requirements and about how endowment funds will be managed. Each of these policies should reflect the objectives of the organization and the intention to reduce risks.