LTA Standard 9: Ensuring Sound Transactions

9E: Easement Drafting

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Easement drafting uses information from the project planning process (Practice 8G) to tailor each easement to the property at hand. Easements identify the important conservation values protected and the public benefit served, allow certain permitted uses, outline reserved rights of the property owner, and explain restrictions and their intent. These restrictions will ensure that the important conservation values of the property are not significantly impaired, and the Land Trust will be capable of monitoring and enforcing restrictions imposed through easements. Land Trust staff draft the initial conservation easement document using the Model Conservation Easement (Appendix 9E.1) and the Conservation Easement Checklist (Appendix 9A.1). The checklist includes necessary items to be considered and included in the easement document. Once the easement is finalized, the completed checklist will be placed in the project planning folder (Practice 8G). The model easement is modified for each individual property, as conservation values, reserved rights, and restrictions vary. The draft easement will be shared with the landowner(s) and the landowners attorney. Altering of language and negotiations are likely before a final draft is prepared. This final draft will be reviewed by an attorney hired by the Land Trust if major modifications are made to the Model Conservation Easement. Key Aspects of a Conservation Easement 1. Conservation values and easement purposes Each resource on the property that is specifically protected by the easement (such as natural, scenic, historic, or cultural resources) and important conservation values are described in easement recitals. Site inspections, inventories, and photographs will help identify and describe these resources in the easement and baseline documents. The recitals also describe the public benefit and facts that qualify the easement under any government funding programs or IRS regulations. If the easement protects multiple resources (such as agricultural lands and wildlife habitat), the recitals may either give them equal emphasis or prioritize them if the purposes are conflicting. 2. Property and easement boundaries It is best to obtain a professional survey that identifies the property boundary, the easement boundary, and all physical improvements, and it is recommended that the landowner pay for this service. The survey may be used as the Exhibit A map, or these boundaries may be used in creation of the Exhibit A map. If a survey is unavailable, a reliable legal description in conjunction with a reliable property boundary GIS layer (county parcel data, Public Lands Survey System, etc.) may be used to create an

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easement boundary layer.

3. Existing physical features and water rights All physical features, including residential and agricultural structures, fences, power lines, and irrigation features should be located by GPS and depicted on the Exhibit A Map and described in the conservation easement. Locations of water features including diversion structures, artesian wells, ditches, ponds (natural or man-made) and canals should also be located by GPS. The Baseline Document should describe the water rights more specifically, including Idaho Department of Water Resources decree, ownership, types of use, and irrigation systems (pivots, flood irrigation, etc.). 4. Restrictions Conservation easements will only prohibit activities that threaten the propertys conservation values. The landowner may engage in any activities that are consistent with the purposes of the easement; and therefore restricted activities must be carefully defined. Restrictions may be quantifiable, such as no draining or diking within 100 ft of a wetland, or goal-oriented, such as water in the pond should not contain excess runoff or sediment. Restrictions should also be defined using measurable and accepted standards so that they are enforceable. Restrictions that cannot be monitored or enforced will not be applied. 5. Reserved Rights Most easements allow for land uses that are not harmful to the important conservation values of the land, or limit activities that might be detrimental. For example, construction is often allowed within an acceptable area. Special use areas, such as building envelopes or sensitive habitat, should have clear boundaries to avoid confusion. For tax-deductible easements, the IRS requires that the donor notify the land trust in writing before exercising any reserved rights that may have an adverse impact on the conservation values protected by the easement.

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