Explanations: Conservation Easements

Whenever a project will be destroying critical habitat for a state-listed species, the project sponsor is required to replace the lost habitat. This can be done in a number of ways, but one of the critical components is insuring that the replaced habitat will not just be torn down once KDWP isn’t looking. As a result, I’ve been running into projects where conservation easements are likely to be a critical component.

An easement is a legal document attached to a title/deed, specifying a certain condition or use of the property. A conservation easement is, obviously, used to specify conditions or usage that will accomplish conservation goals. The property is still owned by the deed-holder, but the owner must abide by the terms of the easement.

Existing habitat can actually be used as “replacement” of lost habitat if the existing habitat will be managed in a way that improves its quality. For example: Cattle grazing is detrimental to Broadhead Skinks. A conservation easement may require an area be fenced off and grazing stopped, which would greatly improve the habitat quality for the Skink.

The issues with easements start with their length. We at KDWP have a mandate to preserve habitat in perpetuity. Landowners in Kansas (especially Western Kansas for some reason), tend to get really nervous when you talk about perpetuity. In the past, we’ve done easements for various lengths of time: 100, 50, or even as little as 25 years. The difference between 100 years and perpetuity is significant, but sometimes 100 years is all you can get. Considering the statutes regulating T&E in Kansas have only been around ~30 years, preserving/enhancing habitat on the 100 year scale is probably pretty good.

However, all these inconsistencies in past easements have made my job difficult. See, project sponsors like to see consistently. “Why can’t I do a 25 year easement if my neighbor did?” This is an understandable concern, and on numerous issues in this job, I’ve tried to make a point of following the precedents we’ve set previously. I’ve done this because I wanted to get my feet wet before stirring things up. Finally, this week we’ve collectively made the decision that we’re just not going to accept easements for less than perpetuity.

Personally, I feel like this is the right thing to do. The KS statutes refer to perpetuity, and the habitats ought to be preserved indefinitely. Even beyond T&E species, Kansas and the U.S. has a need to maintain ecosystem integrity, and maintaining conservation easements in perpetuity also accomplishes that.