Drafting Pointers for Risk Balancing in Conservation

Sound conservation easement drafting ensures perpetual protection of the stated conservation purposes of protected land. This pointer addresses drafting future conservation easements assuming increases in impacts from such changes.

An eight-page introduction to principles, tools, frameworks and strategies for risk management

Ongoing communication between an easement holder and a landowner is critical to ensure that activities on and uses of the land are consistent with an easement's conservation purposes. To effectuate this goal, conservation easements often include clauses governing activities or uses permitted only when the landowner requests the express prior approval of the easement holder. This Practical Pointer contains elements to consider in drafting approval standards.

A modification clause, which may include amendment, consent, waiver and other discretionary approvals, enhances the 'protected in perpetuity' standard and improves the chances of perpetual easement protection. This clause can help conservation organizations properly address unforeseen circumstances.

Conservation easement enabling statutes serve as the internal structural frame upon which thousands of easements have been granted. This is a guided tour of all 50 state enabling statutes.

Who has the legal right to sue in conservation easement cases? The Alliance's Conservation Defense team has compiled this list of cases where standing was approved or denied.

The possibility that a land trust could be required to pay substantial fees and costs if it loses a legal challenge can be a significant deterrent. States take a variety of approaches to costs and fees, so as a first step, land trusts should have experienced local counsel in their state determine what the standard practice or statute is so that you can draft to prevail on the fee recovery clause, without exposing your land trust to prevailing party risks.

This conservation easement discretionary consent policy from the accredited Society for the Protection of New Hampshire Forests.

This guidance covers Practice 9H: Purchasing Land or Conservation Easements.