1. Scope

This guide is intended to establish the methods necessary for good commercial and customary practice in the United States of America for the identification, acquisition, stewardship, monitoring and enforcement of conservation easement deeds that are intended to protect conserved lands in accordance with 26 U.S. Code § 170(h) and associated laws and regulations. It is intended to provide a framework for all parties involved in the processes of identifying, acquiring, stewarding, monitoring, and enforcing conservation easement deeds for protected lands, including donors, accountants, lawyers, land trusts, governmental agencies, support organizations controlled by a governmental agency, publicly supported charities, and other associated organizations.

This guide is intended to permit a user to satisfy the necessary elements of a “qualified conservation contribution,” including establishing a “qualified real property interest” to a “qualified organization”, exclusively for “conservation purposes,” as those terms are defined by statute. The guide is also intended to provide guidance and reference for government agencies when initiating state and federal resource conservation programs that incentivize voluntary use of private lands.

The methodology included in the guide will provide effective and practical processes for achieving the objectives of establishing and managing a qualified conservation easement in perpetuity. The methodology includes: identifying specific real property and conservation purpose; establishing uniform appraisal practices and necessary documentation for acquiring conservation easements; evaluating and determining the costs and resources needed for conservation easement stewardship; monitoring the legal obligation to steward and maintain a regular record of activity including changes on a property over time; and practices to enforce the terms of the practice. Users should also be aware that there are likely to be other legal obligations with regard to terms and conditions contained within the conservation easement deed.

Keywords

Conservation easement deed; land stewardship; qualified conservation contribution; qualified real property interest; qualified organization; conservation purpose; land trust

Rationale

This guide is needed because conservation easements represent complicated and binding real property transactions that can result in a variety of problems for stakeholders if each step in the process is not properly executed. A standard that represents good and customary practice, that can be utilized by all stakeholders, is needed to:
1) ensure the entity that receives and holds a conservation easement possess adequate resources necessary meet its obligations;
2) ensure that landowners fully understand the restrictions associated with a conservation easement in order to avoid land use infractions;
3) improve the quality of conservation and ensure conservation easements are routinely and perpetually monitored, managed and enforced, thereby improving the quality of land conservation and avoid the risk of losing easements as a legal mechanism for land conservation.

The title and scope are in draft form and are under development within this ASTM Committee.