In the field of Private Land Conservation there is a broad set of terminology to describe certain conservation methods, tools, processes and so on. These are used for a common understanding but may still be unfamiliar to many people. We set out to define the key terminology that is used in the field of private land conservation.
Conservation easements (also called conservation covenants, conservation servitudes, or conservation restrictions) are a tool of real property law. They grant a right to a public authority or a qualified conservation organisation (often called land trust) to restrict land use on properties not in their ownership. These land-use rights are otherwise held by the landowner. Conservation easements thus function similarly to regulatory restrictions on land use, but result from direct contractual agreements between two private parties. Conservation easements are usually in gross (they “run with the land”), meaning that they are binding for the present and all future owners of the respective property. Although they can be altered and revoked under certain conditions, they are normally designed to remain effective in perpetuity. A conservation easement on a property is recorded in its title, which means that it has to be registered by a notary at the land registry office.
Conservation easements are very heterogeneous in form and scope. In their simplest form, they merely state that a property (or part of it) is dedicated to conservation purposes. This implies that all actions that run counter to this objective are prohibited. More sophisticated easements specify what natural features (habitats, species, scenery etc.) of the property are protected, what may or may not be allowed on the property, and by whom the allowed activities may be carried out. In their most comprehensive form, they can resemble detailed management plans, or they refer to planning documents that are not registered with the deed and that can thus be updated more easily.
Conservation easements have become the most popular conservation tool in the US. Land trusts in the US now protect more acres by conservation easements than by all other forms of land conservation combined. Their rise has been triggered by a combination of push- and pull factors that are unique to the situation in the US.
Although no explicit legal obstacle exists for their use in most member states, conservation easements are not yet as widely used in the EU. The provision of most EU funding programmes (e.g. LIFE+, RDP) stating that land acquisition for conservation is only eligible if the investment is adequately ensured in the long-term through adequate legal safeguards has led to an increased use of easements for conservation purposes in some member states. However, conservation-related entries in the property title, as described above, rarely go beyond general language dedicating the land to conservation purposes.
The legal concept of conservation easements and its legislative basis in national property law in various EU member states is described in detail in Račinska and Vahtrus 2018 The Use of Conservation Easements in the European Union. Key Characteristics:
- Contracting parties: A conservation easement is established by an agreement between a landowner and someone who is interested in the conservation of the property and is eligible to hold a conservation easement (normally a conservation organisation or a public body).
- The contractual agreement to establish a conservation easement is voluntary on both sides.
- The conservation easement is registered in the title of the property. It has to be recorded at the land register in order to be valid.
- The conservation easement is a tool specifically designed for conservation purposes, which means that its scope is tailored to the conservation value and objectives of a specific property.
- In order to be supported by public financial incentives (e.g. public funding programme or tax deductions) eligibility criteria must be defined in legislation or administrative acts.
- A conservation easement “runs with the land”, i.e. it burdens the current landowners and his/her successors in title. Contrary to covenants or easements benefiting a neighbouring property (“appurtenant easements” in US law), a conservation easement benefits a legal person (“easement in gross”). It thus does not necessitate the benefit to a neighbouring property in order to be established.
- Unless explicitly specified, conservation easement usually last in perpetuity.
- A conservation easement may impose negative and positive obligations on the landowner.
In its Decision in Sharm El-Sheikh, Egypt on 29 November 2018, the Conference of the Parties to the Convention on Biological Diversity (CBD) adopted the following definition of Other Effective area-based Conservation Measures (OECM): “a geographically defined area other than a protected area, which is governed and managed in ways that achieve positive and sustained long-term outcomes for the in-situ conservation of biodiversity, with associated ecosystem functions and services and where applicable, cultural, spiritual, socio-economic, and other locally relevant values”.
Annex III of the same Decision lays out criteria for identifying OECM:
- The area is not recognised as a protected area.
- The area is a geographically defined space with delineated boundaries.
- Governance has legitimate authority and is appropriate for achieving in situ conservation of biodiversity within the area, either as single authority and/or organisation or through collaboration among relevant authorities, and provides the ability to address threats collectively.
- The area is managed in ways that achieve positive and sustained outcomes for the conservation of biological diversity.
- Relevant authorities and stakeholders are identified and involved in management.
- A management system is in place that contributes to sustaining the in-situ conservation of biodiversity.
- The management is consistent with the ecosystem approach with the ability to adapt to achieve expected biodiversity conservation outcomes, including long-term outcomes, and including the ability to manage a new threat.
- The area achieves, or is expected to achieve, positive and sustained outcomes for the in-situ conservation of biodiversity.
- Threats, existing or reasonably anticipated ones are addressed effectively by preventing, significantly reducing or eliminating them, and by restoring degraded ecosystems.
- Mechanisms, such as policy frameworks and regulations, are in place to recognise and respond to new threats.
- The OECM are in place for the long term or are likely to be, with continued governance and management and long-term biodiversity outcomes.
- Recognition of OECM is expected to include the identification of the range of biodiversity attributes for which the site is considered important.
- Identification of OECM should, to the extent possible, document the known biodiversity attributes, as well as, where relevant, cultural and/or spiritual values, of the area and the governance and management in place as a baseline for assessing effectiveness.
- A monitoring system informs management on the effectiveness of measures with respect to biodiversity, including the health of ecosystems.
- Processes should be in place to evaluate the effectiveness of governance and management, including with respect to equity.
- Management to enhance one particular ecosystem function or service does not impact negatively on the sites overall biological diversity.
- OECM may be established, recognised or managed with biodiversity conservation as primary objective, or as part of a set of intended management objectives. If an OECM has other purposes than in situ conservation of biodiversity (i.e. its contribution to in situ conservation of biodiversity is a co-benefit to its primary management objective), it is desirable that this contribution becomes a recognised management objective over time.
- Monitoring of the effectiveness of OECM is needed to ensure that its management has the desired biodiversity outcomes.
The IUCN Report Recognising and reporting other effective area-based conservation measures (IUCN-WCPA Task Force on OECMs 2019) stresses that the “recognition of OECMs offers a significant opportunity to recognise de facto effective long-term conservation that is taking place outside currently designated protected areas under a range of governance and management regimes, implemented by a diverse set of actors, including by indigenous peoples and local communities, the private sector and government agencies. OECMs can contribute to ecologically representative and well-connected conservation systems, integrated within wider landscapes and seascapes, and in doing so, generate a range of positive conservation outcomes, such as:
- conserving important ecosystems, habitats and wildlife corridors;
- supporting the recovery of threatened species;
- maintaining ecosystem functions and securing ecosystem services;
- enhancing resilience against threats; and
- retaining and connecting remnants of fragmented ecosystems within developed landscapes.”
The IUCN report distinguishes between three types of OECMs:
- ‘ancillary conservation’, in-situ conservation as a by-product of management, where biodiversity conservation is not an objective;
- ‘secondary conservation’ where biodiversity is only a secondary management objective; and
- ‘primary conservation’: areas meeting the definition of a protected area, but where the governance authority does not wish the area reported as a protected area.
Land stewardship is a strategy to involve landowners and land users in the conservation of their properties. It usually comes in the form of a contractual or informal voluntary agreement between the landowner and the land stewardship organisation to take care of the target habitats and species on the property.
A land Trust is a non-profit organisation that, as all or part of its mission, actively works to conserve land by undertaking or assisting in land or conservation easement acquisition, or by its stewardship of such land or easements. Land Trusts work with landowners and the community to conserve land by accepting donations of land, purchasing land, negotiating private, voluntary conservation agreements on land, and stewarding conserved land through the generations to come. (Land Trust Alliance 2016)
The land trust “function” of an organisation is about acting as a custodian of a property or use rights (e.g. through easements or contracts) while the stewardship “function” (see land stewardship) is about the active management/maintenance/monitoring of a property, providing technical assistance to a landowner. Both parties agree that the organisation can carry out some of these tasks on the private property.
Private land conservation can be defined as a voluntary activity carried out by individuals, groups of individuals, corporations or non-governmental organisations with the aim to protect or to restore habitats or species on a property under their governance. The opposite of private land conservation is mandatory land conservation through regulatory tools, such as public designation of protected areas or other administrative acts of public authorities. Private land conservation includes the protection of nature and biodiversity on a property which is already in private ownership as well as the private acquisition of a property or of use rights for conservation purposes. As it excludes properties under public governance, it does not refer to lobbying campaigns by private individuals or organisations to conserve public land.
Private land conservation however can refer to various activities along the entire “conservation process”, from producing baseline data on a property’s natural values to proposing and negotiating its designation as protected area with the competent authorities, planning and implementing conservation measures, and carrying out oversight, monitoring and evaluation of the privately protected area.
The IUCN Guidelines for Privately Protected Areas define a privately protected area (PPA) as a “protected area, as defined by the IUCN (i.e. a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values), under private governance”. (Mitchell et al. 2018) Private governance of a protected area can include governance by individuals and groups of individuals, non-governmental organisations, corporations, including existing commercial companies and small companies established to manage groups of PPAs, for-profit owners such as ecotourism companies, research entities such as universities and field stations; or religious entities.
Several defining criteria for PPAs can be derived from this definition. In order to be considered a PPA, the land or sea
- must be recognised, dedicated and managed as a protected area;
- must have nature conservation as the primary function of its protection status. This can include areas with other goals as well, but in the case of conflict, nature conservation will be the priority
- must be dedicated to nature conservation in the long term, either through legal designation as a protected area, through a permanent or renewable binding agreement (e.g. conservation covenant or easement) or through governance by an organisation with clear perpetual conservation objectives (e.g. as stated in its articles of association);
- must be governed by a private entity. This excludes protected areas under public or shared governance. Governance in this context is understood as having decision making power over
- the establishment of a PPA;
- the long-term goal (vision) of the PPA;
- the management objectives;
- the adoption of a management plan and/or system;
- deciding who will implement the management;
- ensuring adequate human and financial resources.
The question of how a PPA is recognised, dedicated and managed, is dealt with differently in EU member states. A few member states explicitly mention PPAs as a category in their national nature conservation laws and foresee a formal process for their designation and recognition (e.g. Portugal, Belgium and Slovakia). In the majority of member states, no such official categories or procedures exist. In these cases, publicly designated protected areas (e.g. nature reserves or Natura 2000 sites) under private governance can be treated as de facto PPAs, when their long-term dedication to nature conservation objectives and the proper governance and management for these objectives is ensured. The IUCN’s PPA Guidelines acknowledge the existence of “many instances of shared governance arrangements that involve private governance in combination with other governance types, depending on the legal and institutional context for conservation in any country”. (Mitchell et al. 2018, 2)
Larger protected areas can have several governance types within them.
On the other hand, not all private land conservation initiatives can or should thus be treated as PPAs or should become PPAs. Where nature conservation is not the primary aim of the site management or is limited to the protection of parts of a larger property, e.g. in the case of set-aside areas as part of responsible forestry operations or landscape features on agricultural properties, such areas would not be considered as PPAs.
The Convention on Biological Diversity’s programme of work on protected areas comments on the importance of recognizing and promoting a broad set of protected area governance types including private nature reserves (Carter et al., 2008).
The basic concept of temporary nature is to allow derogations from the requirements of species conservation law before endangered species emerge on the property. It can be used as a tool to incentivise voluntary conservation/restoration of species or habitats on private property for a limited time period by freeing landowners from possible legal consequences of the establishment of protected habitats/species on the property. The idea behind temporary nature is that some species/habitats of conservation interest are pioneers who quickly occupy ecological niches when they become available. These habitats/species benefit from dynamic short-term protection measures that can be accommodated on many otherwise commercially used properties, e.g. quarries, harbours, off-road racetracks etc.
One form of codifying the concept is the “safe harbour agreement”, in which landowners voluntarily propose to implement habitat restoration or management measures aimed at species of conservation interest. In return, the landowner is provided with a ‘safe harbour’ guarantee ensuring that the competent authorities will not impose additional conservation measures or land use restrictions if the population/habitat size of the targeted species increases as a result of the landowner’s actions.