Credit 4.3: Conservation Easement or Covenant
This credit awards points for creating a legally binding agreement to protect and preserve your property.
A conservation covenant (Canada) or conservation easement (United States) is a voluntary, legally binding agreement between a landowner and a covenant/ easement holder in which the landowner promises to steward the land in ways that are specified in the covenant. A covenant/ easement holder may be a government or a non-government organization that is recognized under applicable federal, provincial or state legislation as being able to hold covenants such as a land trust or nature conservancy. The covenant holder enforces the provisions of the covenant/easement if the owner does not abide by its terms.
A special attribute of a conservation covenant or easement in both Canada and the US is that it is registered on the title of the property, ensuring that it binds all current and future owners of the land. In this way, the protection that the covenant bestows is permanent and “runs with the land.”
To qualify for this credit, establish a conservation covenant or easement on a waterfront property, or a portion thereof, that protects natural features of the shoreline.
Where this credit applies
This credit applies to any waterfront property. A land owner may establish a conservation covenant or easement on all or a portion of their property at any time if they and a covenant holder agree that the ecological values of that property should be preserved.
How to proceed
In some US jurisdictions, a covenant is mandatory on all shoreline vegetation and plantings under their respective Shoreline Master Plans. These mandatory covenants are still recognized under this credit but with fewer points than covenants that are entered into voluntarily.
For a voluntary covenant, if your waterfront property has ecological values, decide whether you are willing to put restrictions on your property on a permanent basis in the interest of preserving natural shoreline features. For instance, a conservation covenant usually places restrictions on future development of a property, and thereby may reduce the property’s market value or saleability. To fully understand the costs and implications, seek advice from an organization that holds conservation covenants or easements, other landowners who already have covenants/easements on their properties, and/or a lawyer who is experienced with conservation covenants/easements.
If you want to go ahead with establishing a covenant on your property, identify an appropriate covenant holder (recipient) such as a local land trust organization or local government. Things to consider in finding an appropriate covenant holder include: whether the holder organization has conservation objectives that fit well with your objectives regarding the special features of your property; and whether the organization has a solid record and adequate human and financial resources to undertake covenant obligations, including long-term monitoring and enforcement.
Basic steps to take for you and your proposed covenant holder are:
- Identify the land (the entire property or portion thereof) to be protected under the covenant.
- Identify the characteristics of the land that are to be permanently protected – special natural features, important habitats, etc.
- Determine the stewardship practices that will best protect those characteristics; for example, leaving it alone, fencing, etc.
- Obtain legal and tax advice.
- Conduct an environmental assessment of the property to ensure it fits within the conservation objectives of the conservation organization and to disclose any outstanding liabilities connected with the land; for example, existing liens on the property, environmental contamination.
- Negotiate the terms and conditions of the conservation covenant/ easement. Examples of Green Shores-based provisions might include:
- Permanently maintain a shoreline riparian buffer as well as acceptable and unacceptable activities in the buffer.
- No shoreline structures (for example, bulkheads, seawalls, piers, docks, etc.) to be constructed except in accordance with the covenant.
- No subdivision of the property except in accordance with the covenant.
- Preserve specific shoreline features present on the property; for example, a bluff ecosystem, trees, etc.
- Preserve rain gardens on the property that manage site drainage so as to minimize impacts on the shore.
- No impervious surfaces to be constructed.
- Have a survey and/or appraisal completed, if necessary.
- Prepare a management plan and management agreement, where necessary.
- Prepare the conservation covenant document.
- Execute the covenant and register it on title.
- Over the long term, monitor the land as agreed in the conservation covenant.
This credit offers up to 6 base points.
|Conservation Easement or Covenant||
|Mandatory (required by local jurisdiction)||
|Place a conservation easement or covenant on a minimum 60 ft (20 m) wide buffer* along 100% of your shoreline||
|Place a conservation easement or covenant on a minimum 30 ft (10 m) wide buffer along 100% of your shoreline||
|Place a conservation easement or covenant on a minimum 30 ft (10 m) wide buffer along 75% of your shoreline||
*Buffer is measured perpendicular inland from the ordinary high water mark or natural boundary.
For more information
Check with the local conservancy or land trust in your area – many have developed their own guides to conservation covenants and easements.
Hillyer, Ann, Judy Atkins and Ben van Drimmelen. 2013. Greening Your Title: a Guide to Best Practices for Conservation Covenants – 3rd edition. West Coast Environmental Law. 209 p. http://wcel.org/resources/publication/greening-your-title-guide-best-practices-conservation-covenant-3rd-edition
Land Trust Alliance of BC. Conservation Options: How you can leave a legacy for the future. http://ltabc.ca/resources/ltabc-publications
Islands Trust Fund. Natural Area Protection Tax Exemption Program – http://www.islandstrustfund.bc.ca/initiatives/privateconservation/naptep.aspx
Federal Ecological Gifts Program – http://www.ec.gc.ca/pde-egp/default.asp?lang=En&n=FCD2A728-1
King County Public Benefit Rating System and Timber Land Programs – http://www.kingcounty.gov/environment/stewardship/sustainable-structure/resource-protection-incentives.aspx
Byers, E. and K.M. Ponte. 2005. The Conservation Easement Handbook 2nd Edition. Land Trust Alliance, Washington DC. 555 p. Go to http://www.landtrustalliance.org and enter “easement handbook” in the search box.