Follow-up and comment to a report entitled, "An Inventory of Conservation Easements in Bay County, Florida" Prepared by: Neil J. Lamb, Ph.D. and Edwin J. Keppner, Ph.D. Co-Chair Conservation Committee and Conservation Committee, Bay County Audubon Society For: The Bay County Audubon Society, Inc.
Bay County, like every other county and municipalities in the state have within their bounds a variety of conservation and stormwater easements that have been created during various permitting purposes. The intent for the creation of each easement is site and project specific. From a community planning perspective of local green infrastructure, habitat and wildlife conservation linkages, these many individual easements present a logistical problem. The easements are often created and forgotten and even when recognized are not well integrated in larger rational conservation efforts. To help address these problems in Bay County Florida Neil J. Lamb, Ph.D. and Edwin J. Keppner identified and mapped these areas.
This effort is reported here under case studies because it represents an effort that can be reproduced elsewhere and can help a community to better plan water, habitat, pedestrian and other linkages across their jurisdiction's landscape. Given some thought, the jumble of regulatory easements may provide useful opportunities to link to other protected areas.
Pictures: Map of the many regulatory easements from DEP and CORP permitting actions in Bay County and an example of where 4 or 5 easements from different permits lined up to produce a useful bit a conserved wildlife habitat.
Summary of their project (adapted)
The purpose of the work was to locate and map the land within Bay County, Florida, that is subject to conservation easements. The primary effort was directed at DEP and COE held conservation easements, because they appear to be the most abundant and are directed at preserving the land for its natural characteristics, particularly its wetland classification. Additional easements held as conservation land by Bay County, by the municipalities within the county, or by private organizations are included where appropriate. Ground level photographs were taken of a number of the conservation easements to initiate a monitoring program to track the status of each easement through time.
The ultimate purpose of this inventory is to provide state and federal agencies, local governments, and the citizens of Bay County with a ready reference and expandable database of conservation easements established in the county. This information should be useful for planning purposes involving all aspects of the development of our ecosystem such as local comprehensive planning, zoning, planning for the maximization of mitigating actions through the use of conservation easements, flood control plans, etc. Use and improvement of the database by experts in the fields of planning and geographical information systems in each agency and/or organization are encouraged by the authors.
The primary effort may be directed at DEP and COE held conservation easements, because they likely exist in your community and are directed at preserving the land for its natural characteristics, particularly its wetland values. Additional easements may be held as conservation land by other local counties, cities or by private organizations.
The ultimate purpose of such inventory is to provide state and federal agencies, local governments, and the citizens of the jurisdiction with a reference and expandable database of local conservation easements. This information is useful for planning purposes involving aspects of the development of our ecosystem such as local comprehensive planning, zoning, planning for the maximization of mitigating actions through the use of conservation easements, flood control plans, etc. Ground level photographs can be taken of the conservation easements to initiate a monitoring program to track the status of each easement through time.
For a very well done local inventory and assessment of existing conservation easements in Bay County Florida go to: http://www.floridahabitat.org/wiki/pdf/an-inventory-of-conservation-easements-in-bay-county-florida . This work helps to lay a foundation for planning local green infrastructure as many existing conservation easements are already in place that have been negotiated via various state, regional or local regulatory processes. Efforts like this are a good starting point or project along the way to systematic planning of an area's green infrastructure.
Background
Conservation Easements. The following definition and description of conservation easements is from Diehl and Barrett (1988). A conservation easement is a legal agreement a property owner makes to restrict the amount of development that may take place on his or her property. Each easement’s restrictions are tailored to a particular property and to the interests of the individual owner. The ownership of a piece of property brings rights and responsibilities. The owner may sell or give away all of the rights or some of those rights. The giving or selling of certain of those rights such as the right to construct buildings or restrict access, etc. while retaining other rights is accomplished by granting or selling an easement to another party. The specific rights that a property owner foregoes when granting or selling a conservation easement are detailed in each easement document. The property owner and the easement holder agree to restrictions (what can and/or cannot be done on the property) in order to protect the property. The owner gives to the easement holder the right to enforce the restrictions. The holder of a conservation easement is usually a qualified conservation organization such as a public agency, a land trust, or other qualified group with the means to enforce the restrictions of the easement. The conditions of the easement may be altered with agreement of all parties involved in the easement.
Another method of explaining conservation easements was provided by Alavalapati (2004) in a cover letter to a survey of easements sent to selected landowners to determine their perceptions and attitudes toward conservation easements. The letter stated that a conservation easement (CE), is a voluntary legal agreement wherein a landowner agrees not to build houses, apartments, shopping malls, etc. (i.e., not to develop the land in a specific way) over a specified period of time in exchange for a payment and/or tax benefits. Like conservation land purchase programs, CEs preserve environmental quality and control urban sprawl. However, CEs are preferred over land purchases by conservation agencies since they cost less (since only the rights and not the land are being purchased) and lands do not need to be managed by the agency.
CEs are ideal for landowners who want to keep land in its current use (e.g., farming, ranching, recreation, forestry). This is because they do not want to develop their land anyway and are getting paid. On the other hand, CEs are not appropriate for landowners who desire flexibility in terms of future use of their land. This is because CEs restrict land use (particularly for potentially high-valued development) and require periodic monitoring for compliance (i.e., land remains undeveloped).
General Discussion and Comments
As already stated, the placement of conservation easements required by the regulatory process can be planned, within the limitations of the permitting process, to increase their value to the ecosystem. The data presented herein provides a method for examining the effects of the placement of conservation easements and may provide information to develop a plan for the placement of conservation easements to benefit everything and everyone concerned.
On-site Conservation Easements. The nature of the permitting process appears to require, where feasible, the placement of conservation easements within residential and commercial developments to provide the preferred on-site mitigation. Examination of the data presented here indicates that these easements may be more strategically placed by developing a plan that would link conservation easements as development occurs on adjacent areas. However, there are conservation easements that will remain isolated because they are surrounded by existing development, and there will be additional isolated conservation easements developed in the future out of necessity for on-site mitigation. The same is true for the linking of easements with easements held by other entities. The area around each existing conservation easement and other entity held easements could be examined and a plan developed for linkage or expansion of the existing easement(s) and preserve(s).
Some of the easements in residential areas incorporate a portion of the residential lots in the development. For a variety of reasons, this should be discouraged. The individual lot owners may not be sufficiently aware of the purpose of the conservation easement, or they may believe that their ownership rights allow them to violate the easement. For these reasons, the location of a conservation easement should avoid the incorporation of private, residential property in the easement that will be sold and sold again.
Some conservation easements placed in residential developments consist of isolated fragments scattered throughout the developed area. Figure 14 is a fragmented residential conservation easement off of Wildwood Drive and north of Highway 98 along the western shore of St. Andrew Bay. Figure 15 shows an interconnected residential conservation easement south of Laird Street at Panama City Beach. The interconnected easement is conceivably of more value ecologically than the fragmented easement. When planning on-site mitigation in terms of conservation easements, the easement plan should maximize the interconnectivity of the individual parcels placed in conservation easement.
In other developed areas that have a number of conservation easements scattered among the development, the individual units can be connected in a variety of ways including culverts, bridges, or direct land connections. The large number of discreet conservation easement units on the Wild Heron development appears to have interconnections between the units (Figure 16).
Of-site Conservation Easements. Off-site easements are those conservation easements that are placed on property away from the place of impact and serve as mitigation through preservation of the property. Additional mitigation lift, above that of preservation, can be received if wetlands are restored, enhanced, or created on the preserved property. Off-site easements are of two types, within the ecosystem or drainage basin affected by the permit and out of the ecosystem affected by the permit. It is our opinion that off-site easements must remain in the ecosystem that is affected by the permit in order to maximize the benefits to the affected ecosystem. Out of ecosystem mitigation does little, if anything, to support the affected ecosystem.
A. Off-site Conservation Easements within the Ecosystem. Examination of the data presented herein demonstrates areas within the ecosystem where off-site placement of conservation easements linked to existing easements would increase the acreage of land in conservation status and provide increasing benefits to the ecosystem by defragmentation and expansion of existing wildlife habitat areas protected by conservation easements. The examples provided in Figure 6 and Figure 17 represent areas of linked conservation easements. Other areas in eastern and southeastern Bay County or in the Washington County portion of the ecosystem that may also benefit from this practice may be identified. Noah’s Ark could also be employed to place easements along essential stream corridors to maintain the water quality of the freshwater streams and the estuary.
B. Conservation Easements Out of the Ecosystem. In general, the reasons for the placement of the easements listed in this document are apparent as on-site mitigation or mitigation within the subdrainage basin, or ecosystem. However, the few conservation easements that have been placed out of the St. Andrew Bay ecosystem appear to have little, if any, ecological justification to our ecosystem that has suffered the loss of wetlands.
The mitigation values of
conservation easements located in an ecosystem other than the one affected
appears of little value in compensating for the loss of wetlands in the
affected ecosystem. This is particularly important in a small yet highly
productive and species diverse ecosystem such as the St. Andrew Bay ecosystem.
The placement of easements out of the St. Andrew
Bay ecosystem has an unrecoverable, negative impact on the ecosystem due to its
small size. The Choctawhatchee River and Bay ecosystem encompasses all
or parts of Washington, Holmes, Walton, Jackson, and Okaloosa Counties and
extends into Alabama. It is significantly larger than the St. Andrew Bay
ecosystem. The placement of conservation easements in this ecosystem for losses
of wetlands in the St. Andrew Bay ecosystem is, proportionately, of little
value to the Choctawhatchee River ecosystem whereas it is of great impact on
the St. Andrew Bay ecosystem. Two examples of the placement of conservation
easements in another ecosystem as mitigation for wetland losses in the St.
Andrew Bay ecosystem are the Mullis easement and the Brudnicki easement
adjacent to the Choctawhatchee River in Washington County, Florida. The Mullis
easement is 11 acres, and the Brudnicki easement is 60.82 acres.
Violations of Conservation Easements. A few activities on conservation easements that appear to be violations of the conditions of the easements were observed and reported to the DEP during this survey. In one instance, property owners violated the portion of the easement on their residential lots by placing structures on the easement part of their property. In this instance, the DEP renegotiated the easement and removed the easement from residential lots and expanded the easement in other areas. Another observed violation was the clearing of a portion of an easement behind residential lots by the homeowners. The rather extensive area was cleared of shrubs and herbaceous vegetation and nursery plants with tags on them were replanted in a few areas. This activity degraded the value of the easement as wildlife habitat in spite of the fact that a bird house or two were placed on a few remaining trees. The resolution of this apparent violation is unknown.
Created Wetlands on Conservation Easements. Where permits and conditions of conservation easements require the creation of man-made wetlands, these man-made wetlands invariably appear less functional than natural wetlands. Although these observations are limited to those observed in this inventory and were strictly casual, it appears that this aspect of the mitigation process should be limited in favor of greater emphasis on preserving natural wetlands and their associated ecotones and upland buffer. This is particularly important along the flowing waters of our ecosystem.
Conservation Easement Signs. Conservation easements were observed that had signs that inform people that the area is a conservation easement held by the DEP and provides the DEP permit number. An example is shown in the cover photograph of this report. These signs should be placed at regular intervals around each conservation easement and would benefit from a short statement of the purpose of the easement such as “to protect the wildlife and water quality of the St. Andrew Bay ecosystem.” Some counties in Florida (e.g. Brevard County) require standard signs at specified intervals around the conservation easement and split-rail type fences around each conservation easement. It is our opinion that such requirements are an excellent strategy and should be adopted in Bay County.
Monitoring of Conservation Easements. It appears that the periodic monitoring of the conservation easements is a necessary requirement to maintain the purpose for which they were negotiated. Monitoring plans for the DEP conservation easements are in place in some instances. These plans should be developed for the monitoring of each easement and should include photographic documentation from referenced points to track the condition of the easements with time. The conditions and restrictions placed on the easements must be enforced and violations rectified quickly. A monitoring plan is necessary to accomplish this efficiently.
Conservation Easements as Habitat for Plants and Animals
Among the functions of conservation easements is that they serve as habitat for animals and plants. The Environmental Law Institute (2003) provided valuable information for land use planners regarding the maintenance of biodiversity in the planning process. The Institute document recognizes that loss and fragmentation of habitats and ecosystems have become the most significant threats to biodiversity and discusses the effects of size of habitat patches, ecotones, riparian buffers, and habitat connectivity effects.
Habitat loss, alteration, and fragmentation are essential aspects of the endangerment of most rare species that are protected under state and federal law nationally, at the state level, and in Bay County. Neotropical migrating species of birds are increasingly of more concern due to habitat loss, alteration, and fragmentation. A planned application of conservation easements as mitigation for the loss of wetland habitat can be of benefit to biodiversity as a whole and protected species specifically. However, this will require thought and the expenditure of time to attain the information necessary to maximize the positive impact of the conservation easement plan on habitat in general and on rare, endemic, and/or listed species.
The value of the conservation easements to these species should be considered. If conservation easements are to be kept in a natural state, then knowledge of the biotic communities present on each easement should be obtained and used as the basis for management plans to maintain the easement in the natural community. For example, a conservation easement that was placed on freshwater marsh should be managed to remain as freshwater marsh. The natural replacement of the marsh by shrubs and trees may not be desirable in some instances. The growth of invasive non-native species should be controlled if they are present when the easement is established and should be removed if they become established after the area is placed in a conservation easement. An inventory of the rare and/or protected species, if any, occurring on each or certain selected conservation easements would provide valuable information regarding the status of those species and encourage a management plan that will maintain their occupied habitat on the easement. This would require that species inventories be conducted in conjunction with the biotic community surveys on the easements. The value of the inventories would be in providing information-based management and monitoring plans for the conservation easements that will assure the “forever” in the statement of purpose for conservation easements provided in the DEP easement documents as stated above.
Recommendations
The following recommendations are based on the observations and examination of the data presented herein. If the use of conservation easements continues to be employed as a frequent mitigating action, a plan should be developed to maximize the mitigating circumstances and effectiveness of each conservation easement and to provide for the exchange of information pertaining to existing and future conservation easements between state, federal, and local governmental agencies.
1. Intergovernmental agreements and processes should be developed to ensure that the Bay County Planning Department and the equivalent departments in the municipalities receive notice of conservation easements negotiated as part of the permitting processes of the DEP and COE for annotating their zoning maps and future land use maps. One method to accomplish this would be to make re-zoning of the conservation easements in the county to Conservation-Preservation a condition of the issued permit and require proof of re-zoning prior to execution of the permit by the permittee.
2. Continue the precedent set by Bay County in September 2004 by adopting the conservation easements as Conservation Preservation in the LDRs, by incorporating the final results of this inventory into the Bay County LDRs, and by automatically zoning all new conservation easements identified in this inventory and those to be added in the future as Conservation Preservation in the LDRs and Comprehensive Plan.
3. A plan for the strategic placement of off-site conservation easements as mitigation for permit issuance should be developed to maximize the ecological value of the easement program, to provide for better management, and provide for easier monitoring and enforcement of the easement conditions and restrictions. It is hoped that there is sufficient latitude in the mitigation process to include ecotones and upland buffers in the site selection process for easements, particularly those placed off-site. As a corollary to this recommendation, conservation easements should be used to expand existing protected areas of habitat, interconnect existing patches of habitat, and to maintain the diversity of natural biotic communities in the ecosystem.
4. One method that may be beneficial in achieving a strategic plan for the placement of conservation easements is the development of a Transfer of Development Rights (TDR) program for Bay County and the municipalities. This inventory could be a tool in developing the TDR programs by aiding in the identification of sending areas (parcels to be preserved and their development rights transferred to increase density elsewhere) of ecological value or of value in stormwater management.
5. On-site conservation easements should be interconnected within the area to be developed. Isolated patches of easements within the overall development proposal should be avoided. These small fragments of easements do not appear to be ecologically functional, and they are difficult to manage and to monitor.
6. Conservation easements should not include portions of individual residential lots subject to the interpretation of the easement by the homeowner. A serious issue and problems can result from violation of the easement when the easement is spread over many lot owners in a development. It appears that new homeowners may not understand the deed restrictions on their property even though what may be considered unambiguous disclosure is provided to these new homeowners at the time of their purchase.
7. It is our recommendation that the use of conservation easements to compensate for the loss of wetlands to the regulatory process be placed in the subdrainage basin of the ecosystem affected or, if not feasible, then in the same ecosystem.
8.
Monitoring plans should be developed for each
easement with referenced photographic points and a required frequency of monitoring
of at least once each year. The plans should be developed to provide sufficient
information to be of value in enforcing the conditions of the conservation
easement. This may involve a description of the biological and/or physical
conditions of the easement if one is not included in the conservation easement
document or accurately described in the mitigation plan attached to the permit.
Any required restoration,
creation, or enhancement of wetlands on
the conservation easement should be carefully monitored for compliance with the
condition(s) of the conservation easement and permit.
9. Enforcement of the conservation easements should be vigorously pursued to maintain the value of the easement program as a mitigating action. In the absence of monitoring for enforcement, the conservation easement program loses credibility as a mitigating action for the loss of wetlands in the permitting program.
10. Standard signs should be required at specified intervals along the conservation easements to provide information that the area is a conservation easement. This has been required by the DEP in some instances and should be extended to all easements where practicable. It is also recommended that the split-rail type fencing be required around conservation easements as is accomplished in Brevard County where practicable.
11. It
is recommended that the DEP and COE use this inventory to establish a
permanent, ongoing database of all the conservation easements that will be
obtained in the future. This should include dependable and accurate
documentation to establish that all conservation easements are officially
recorded in order to appropriately encumber the properties.
12. If
the DEP and COE do not have the staff or funds required to monitor and enforce
the conditions of the conservation easements, they should consider adding a
conservation-based organization to the conservation easement program to monitor
and enforce the conditions of the easement (i.e. a third party). This, of
course, would require some means of providing that organization with an
endowment sufficient to provide for monitoring and legal fees that may be
incurred in enforcing the conditions of the easement. The first author has
proposed a volunteer monitoring program, “Adopt an Easement” that may assist in
monitoring easements. This, however, will not provide enforcement capabilities
that would remain with the easement holding agency or agencies. The agency
holding the conservation easement would be responsible for the enforcement of
any violations of the conservation easements documented by the volunteer
monitors.
