Trends in Easement Language and the Status of Current Monitoring on Working Forest Conservation Easements

TRENDS IN EASEMENT LANGUAGE AND THE STATUS OF CURRENT MONITORING ON WORKING FOREST CONSERVATION EASEMENTS

ADAM BLOCK KARA HARTIGAN ROBERT HEISER GREGORY HORNER LUKE LEWANDOWSKI JASON MULVIHILL-KUNTZ STEPHEN THORN

A PROJECT SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE IN NATURAL RESOURCES AND ENVIRONMENT SCHOOL OF NATURAL RESOURCES & ENVIRONMENT THE UNIVERSITY OF MICHIGAN

APRIL 2004

FACULTY ADVISOR: ELIZABETH BRABEC, J.D., M.L.A.

ACKNOWLEDGEMENTS

We would like to thank Tina Hall, Conservation Director of The Nature Conservancy’s Upper Peninsula Conservation Center, Michigan Chapter, for her guidance, insight, and assistance throughout our project. Our research question closely paralleled an emerging area of research within TNC, which helped facilitate collaboration. Additional thanks to our faculty advisor, Elizabeth Brabec for her direction and commitment to making this work a success.

We are grateful to Tammara Van Ryn, Director of Research and Easement Excellence at the Land Trust Alliance, for her advice on the project scope and topic.

We also want to thank the Land Trust Alliance (LTA) for enabling us to participate at its Midwest Rally as well as attend its National Rally. LTA-sponsored research also provided a strong background from which to build our research.

We would also like to thank the land trust community for its participation in our project. Its cooperation made this project a reality and hopefully a benefit to all land trust professionals involved in Working Forest Conservation Easements. In particular, Paul Doscher of the Society to Protect New Hampshire Forests, Connie Best of the Pacific Forest Trust, and John Henshaw of the USFS Forest Legacy Program provided critical insight into the project.

Billy Heiser and Dana Jackman provided invaluable technical and analytical support for our project.

Those who provided funding and in-kind support for this project deserve special mention: The Prentice Foundation, University of Michigan’s School of Natural Resources and Environment, the Ecosystem Management Initiative, The Nature Conservancy’s Upper Peninsula Conservation Center, and the Horace H. Rackham School of Graduate Studies. In particular, Kathy Holmes was instrumental in helping us secure funding for our participation at the Land Trust Alliance Rally in Sacramento, California.

Lastly, we would like to thank our family and friends for their support and understanding. Their patience and comfort helped ground and energize us.

The paper on which this project is printed is made from 100% post-consumer pulp in a chlorine-free pulping and bleaching process.

PROJECT MEMBERS

Adam Block Degree: M.S. in Natural Resources and Environment, Resource Policy and Behavior. Background: B.S. in Environmental Conservation, University of New Hampshire, NH, 2001. Interests: Collaborative approaches to resource management and land protection, community level land-use planning

Kara Hartigan Degree: M.S. in Natural Resources and Environment, Resource Policy and Behavior. Background: B.S. in Environmental Geoscience and Human Development, Boston College, MA, 1998. Interests: Community-based conservation partnerships, psychology of environmental stewardship, environmental education

Robert Heiser Degree: M.S. in Natural Resources and Environment, Resource Ecology and Management. Background: B.A. in Economics and Psychology, Amherst College, MA, 1991; M.B.A. The Amos Tuck School of Business, Dartmouth College, NH, 1996. Interests: Land conservation and ecosystem management in the Northeast

Gregory Horner Degree: M.S. in Natural Resources and Environment, Resource Policy and Behavior. Background: B.A. in Environmental Studies, Middlebury College, VT, 1998. Interests: New England land conservation and sustainable growth, public-private partnerships for environmental solutions.

Luke Lewandowski Degree: M.S. in Natural Resources and Environment, Resource Policy and Behavior: Conservation Biology and Ecosystem Management Concentration. Background: B.S., Preprofessional Sciences, University of Notre Dame, IN, 2000. Interests: Land Conservation in the Great Lakes Ecoregion, biodiversity protection, freshwater protection

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Jason Mulvihill-Kuntz Degree: M.S. in Natural Resources and Environment, Resource Policy and Behavior: Conservation Biology and Ecosystem Management Concentration. Background: B.A. in History and Environmental and Technology Studies, Carlton College, MN, 2001. Interests: Community-based land and resource conservation, collaborative ecosystem management, and public land management.

Stephen Thorn Degree: Joint J.D. in Law School and M.S. in Natural Resources and Environment, Resource Policy and Behavior. Background: B.S. in Chemistry, Yale University, CT, 1997; M.S. in Organic Chemistry, University of Illinois, IL, 2000. Interests: The intersection of land conservation, private property rights, and environmental law.

PROJECT ADVISOR AND CLIENT

Elizabeth Brabec, J.D., M.L.A. Position: Associate Professor of Landscape Architecture, School of Natural Resources & Environment, The University of Michigan

Interests: TheT legal and economic implications of land and resource conservation, historic and cultural landscape documentation evaluation and protection, cross-cultural participation in land-use planning and design processes

Tina Hall, Ph.D. Position: Conservation Director of The Nature Conservancy’s Upper Peninsula Conservation Center, Michigan Chapter. Interests: Landscape-scale conservation; monitoring protected properties for conservation values

TABLE OF CONTENTS

ACKNOWLEDGEMENTSTU UT ...... ii

PROJECTTU MEMBERSUT ...... iii

PROJECTTU ADVISOR AND CLIENTUT ...... v

TABLETU OF CONTENTSUT ...... vi

LISTTU OF TABLESUT ...... ix

LISTTU OF FIGURESUT ...... xiii

ABSTRACTTU UT ...... xv

I.TU INTRODUCTIONUT ...... 16

I.1TU Why Protect America’s Forests?UT ...... 16

I.2TU What is a Working Forest Conservation Easement?UT ...... 16

I.3TU The StudyUT ...... 17

I.3.1TU Description...... UT 18

I.3.2TU Importance of Research and Scope of AnalysisUT ...... 19

I.3.3TU ObjectivesUT ...... 19

I.3.4TU Research Questions...... UT 20

II.TU LITERATURE REVIEWUT ...... 22

II.1TU Working Forest Conservation EasementsUT ...... 22

II.2TU Defining Characteristics: Forest Management RequirementsUT ...... 23

II.2.1TU PurposesUT ...... 24

II.2.2TU RestrictionsUT ...... 24

II.2.3TU Forest Management Plans (FMPs)UT ...... 25

II.2.4TU Best Management Practices (BMPs)UT ...... 26

II.3TU Who Utilizes WFCEs?UT ...... 27

II.4TU What May Be Protected?UT...... 28

II.5TU Special Federal and State Conservation ProgramsUT ...... 28

II.5.1TU USDA Forest Service, Forest Legacy ProgramUT ...... 29

II.5.2TU Land for Maine’s FutureUT ...... 29

II.6TU Easement DraftingUT ...... 30

II.6.1TU Easement PurposesUT ...... 31

II.6.2TU Baseline DocumentationUT ...... 32

II.7TU Landowner Relations...... UT 32

II.8TU Monitoring Conservation EasementsUT ...... 33

II.8.1TU Available Monitoring TechniquesUT ...... 35

II.8.2TU Establishing a Monitoring RegimeUT ...... 40

II.8.3TU The Cost of MonitoringUT ...... 44

II.8.4TU Monitoring EndowmentUT ...... 44

II.8.5TU WFCEs and Forest CertificationUT ...... 46

II.8.6TU The Pingree Easement: A Model in Large-Scale MonitoringUT ...... 49

II.9TU Issues Affecting the Use of WFCEsUT ...... 51

II.9.1TU Ownership Patterns in America’s Private ForestsUT ...... 51

II.9.2TU Forest FragmentationUT...... 54

II.9.3TU Aging LandownersUT ...... 55

III.9.4TU Problems with Future LandownersUT ...... 55

II.9.5TU Lack of Land Trust Financial ResourcesUT...... 56

II.10TU EnforcementUT ...... 57

II.10.1TU Monitoring for EnforcementUT ...... 57

II.10.2TU Enforcement Provisions Inside of WFCEsUT...... 58

II.10.3TU Interpretation of Easements in CourtUT ...... 58

II.10.4TU Enforceability of FMPs and BMPsUT ...... 60

II.11TU Potential “Affirmative Defenses” for LandownersUT ...... 61

II.11.1TU Dead-hand ControlUT ...... 62

II.11.2TU Equitable Doctrine of “Changed Conditions”UT ...... 62

II.11.3TU Attacking the Purpose of the Conservation EasementUT ...... 63

II.11.4TU Direct Attacks Upon Land Trust’s Charitable StatusUT ...... 64

II.12TU Termination of EasementsUT ...... 65

II.12.1TU Doctrine of MergerUT ...... 65

II.12.2TU Modification, Termination, and ReleaseUT ...... 66

III.TU OBJECTIVES AND METHODOLOGYUT ...... 67

III.1TU Study Sample SelectionUT ...... 68

III.1.1TU Why 1,000 Acres and Larger?UT ...... 68

III.1.2TU How Easements were ObtainedUT ...... 68

III.1.3TU Monitoring Survey Sample SetUT ...... 70

III.2.TU Easement Comparison StudyUT ...... 75

III.2.1TU Determine Trends in Easement Language for: Purposes, Restrictions and

Forest Management RequirementsUT ...... 76

III.2.2TU Provide Content for the Monitoring SurveyUT ...... 79

III.3TU Monitoring SurveysUT ...... 79

III.3.1TU Why was a Survey Used?UT ...... 79

III.3.2TU Why a Phone Survey?UT ...... 80

III.3.3TU Why a Customized Survey?UT ...... 80

III.3.4TU Survey Sections & CollectionUT ...... 81

III.4TU Limitations of StudyUT ...... 83

III.4.1TU Introduction/General Project LimitationsUT ...... 83

III.4.2TU Limitations from the Easement Comparison StudyUT ...... 85

III.4.3TU Limitations from the Monitoring SurveysUT ...... 86

IV.TU RESULTS AND ANALYSISUT...... 89

IV.1TU Trends in Easement LanguageUT ...... 89

IV.1.1TU Description of SampleUT ...... 89

IV.1.2TU Easement Language ThemesUT ...... 94

IV.1.3TU Water...... UT 96

IV.1.4TU Technology and ExtractionUT ...... 108

IV.1.5TU DevelopmentUT ...... 114

IV.1.6TU Forest ManagementUT ...... 121

IV.1.7TU Ecosystem and Rare SpeciesUT ...... 135

IV.1.8TU RecreationUT ...... 145

IV.2TU Monitoring Survey ResultsUT ...... 150

IV.2.1TU Easements Not Currently MonitoredUT ...... 151

IV.2.2TU Important Considerations for Interpreting ResultsUT ...... 151

IV.2.3TU Monitoring ProtocolsUT ...... 155

IV.2.4TU Baseline DocumentationUT ...... 157

IV.2.5TU Compliance / Restriction MonitoringUT ...... 160

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IV.2.6TU Monitoring Methods and TechniquesUT ...... 165

IV.2.7TU Monitoring EffectivenessUT...... 170

IV.2.8TU Frequency of MonitoringUT ...... 176

IV.2.9TU Purpose MonitoringUT ...... 178

IV.3TU Synthesis of Easement Comparison Study and Monitoring Survey ResultsUT ...... 182

IV.3.1TU Introduction...... UT 182

IV.3.2TU Water ProtectionUT ...... 183

IV.3.3TU Forest ManagementUT ...... 185

IV.3.4TU DevelopmentUT ...... 186

IV.3.5TU Third Party MonitoringUT ...... 187

IV.3.6TU Annual MeetingsUT ...... 188

IV.3.7TU RecreationUT ...... 188

V.TU RECOMMENDATIONS AND SUGGESTIONS FOR FUTURE RESEARCHUT ...... 190

V.1TU Recommendations: IntroductionUT ...... 190

V.1.1TU Landowner RelationsUT ...... 190

V.1.2TU Monitoring TechniquesUT ...... 192

V.1.3TU Monitoring RegimeUT ...... 193

V.2TU Future Research: IntroductionUT ...... 194

V.2.1TU Forest Legacy ProgramUT ...... 194

V.2.2TU Ecological IndicatorsUT...... 196

V.2.3TU Forest Certification and Third-Party MonitoringUT ...... 197

V.2.4TU Easement DraftingUT...... 199

V.2.5TU Connecting Easement Purposes to RestrictionsUT ...... 199

V.2.6TU Restrictions that can be MonitoredUT ...... 200

V.2.7TU State and Federal Guidelines (BMPs)UT ...... 200

V.2.8TU Forest Management Plan (FMPs)UT ...... 202

V.2.9TU Case Study Focusing on Exemplary Easements or OrganizationsUT ...... 203

VI.TU SUMMARY OF FINDINGSUT ...... 204

VI.1TU Easement Language ResultsUT ...... 204

VI.2TU Survey ResultsUT ...... 209

VI.3TU Synthesis of ResultsUT ...... 213

VII.TU WORKS CITEDUT ...... 215

APPENDIXTU A – MATRIX TEMPLATEUT ...... 221

APPENDIXTU B – SURVEY TEMPLATEUT ...... 229

APPENDIXTU C – MATRIX DATA ORGANIZED BY THEMESUT ...... 238

APPENDIXTU D – MATRIX THEME DATAUT ...... 243

APPENDIXTU E – SURVEY DATAUT ...... 250

APPENDIXTU F – SURVEY QUOTES FROM MONITORING PROFESSIONALSUT ..... 259

APPENDIXTU G – MONITORING COST WORKSHEETUT ...... 265

APPENDIXTU H – GLOSSARY OF TERMSUT ...... 266

viii

LIST OF TABLES

TableTU I.1 Research questions with associated chapter numbers.UT ...... 21

TableTU II.1 Common elements of WFCEs and forest certification (Source: Newsom

2002).UT ...... 47

TableTU II.2 Forestland Ownership in Parcels of 1,000 Acres and Greater, By Region

(Source: Best and Wayburn, 2001; Irland, 1999; Birch, 1996).UT ...... 52

TableTU II.3 Timber Industry Ownership, By Region (Source: Best and Wayburn 2001;

Birch 1996).UT ...... 53

TableTU IV.1 Percentage of 82 easements with purposes and restrictions in each easement language theme and the average number of purposes and restrictions in those

easements.UT ...... 95

TableTU IV.2 Number and percentage of easements that included water-related purposes by

easement holder.UT ...... 102

TableTU IV.3 Number and percentage of easements that included water-related restrictions

by easement holder.UT ...... 103

TableTU IV.4 Number and percentage of easements that included water-related purposes by

easement age (year signed).UT ...... 105

TableTU IV.5 Number and percentage of easements that included water-related restrictions

by easement age (year signed).UT ...... 106

TableTU IV.6 Number and percentage of easements that included water-related purposes by

size of property (acres).UT...... 107

TableTU IV.7 Number and percentage of easements that included water-related restrictions

by size of property (acres).UT...... 108

TableTU IV.8 Number and percentage of easements that included technology and extraction-

related purposes by easement age (year signed).UT ...... 112

TableTU IV.9 Number and percentage of easements that included technology and extraction-

related restrictions by easement age (year signed).UT ...... 113

TableTU IV.10 Number and percentage of easements that included technology and

extraction-related purposes by size of property (acres).UT ...... 113

TableTU IV.11 Number and percentage of easements that included technology and

extraction-related restrictions by size of property (acres).UT...... 114

TableTU IV.12 Number and percentage of easements that included development-related

restrictions by easement holder.UT ...... 117

TableTU IV.13 Number and percentage of easements that included development-related

purposes by easement age (year signed).UT ...... 118

TableTU IV.14 Number and percentage of easements that included development-related

restrictions by easement age (year signed).UT ...... 120

TableTU IV.15 Number and percentage of easements that included development-related

purposes by size of property (acres).UT ...... 120

TableTU IV.16 Number and percentage of easements that included development-related

restrictions by size of property (acres).UT ...... 121

TableTU IV.17 Number and percentage of easements that included forest management-

related purposes by easement holder.UT ...... 124

TableTU IV.18 Number and percentage of easements that included forest management restrictions related to plans, oversight, and logistical considerations by easement

holder.UT ...... 125

TableTU IV.19 Number and percentage of easements that included forest management

restrictions related to management objectives and standards by easement holder.UT 126

TableTU IV.20 Number and percentage of easements that included restrictions related to

ecological forest management by easement holder.UT ...... 127

TableTU IV.21 Number and percentage of easements that included forest management-

related purposes by age of easement (year signed).UT ...... 128

TableTU IV.22 Number and percentage of easements that included forest management restrictions related to plans, oversight, and logistical considerations by age of

easement (year signed).UT ...... 129

TableTU IV.23 Number and percentage of easements that included forest management restrictions related to management objectives and standards by age of easement

(year signed)...... UT 131

TableTU IV.24 Number and percentage of easements that included restrictions related to

ecological forest management by age of easement (year signed).UT ...... 132

TableTU IV.25 Number and percentage of easements that included purposes related to forest

management by size of property (acres).UT ...... 132

TableTU IV.26 Number and percentage of easements that included forest management restrictions related to plans, oversight, and logistical considerations by size of

property (acres).UT ...... 133

TableTU IV.27 Number and percentage of easements that included restrictions related to

forest management objectives and standards by size of property (acres).UT ...... 134

TableTU IV.28 Number and percentage of easements that included forest management-

related restrictions by size of property (acres).UT ...... 135

TableTU IV.29 Number and percentage of easements that included recreation and public

access-related restrictions by easement holder.UT ...... 138

TableTU IV.30 Number and percentage of easements that included ecosystem and rare

species-related restrictions by easement holder.UT ...... 139

TableTU IV.31 Number and percentage of easements that included ecosystem and rare

species-related purposes by easement age (year signed).UT ...... 140

TableTU IV.32 Number and percentage of easements that included ecosystem and rare

species-related restrictions by easement age (year signed).UT...... 143

TableTU IV.33 Number and percentage of easements that included ecosystem and rare

species-related purposes by size of property (acres).UT...... 144

TableTU IV.34 Number and percentage of easements that included ecosystem and rare

species-related restrictions by size of property (acres).UT ...... 145

TableTU IV.35 Number and percentage of easements that included recreation and public

access-related restrictions by easement holder.UT ...... 148

TableTU IV.36 Number and percentage of easements that included recreation and public

access-related restrictions by easement age (year signed).UT ...... 149

TableTU IV.37 Number and percentage of easements that included the purpose “recreation

and public access” by size of property (acres).UT ...... 149

TableTU IV.38 Number and percentage of easements that included recreation and public

access-related restrictions by size of property (acres).UT ...... 150

TableTU IV.39 Number of easements originally in survey set, unable to survey, with no

monitoring program, and actually surveyed.UT ...... 151

TableTU IV.40 Restrictions that appeared in ten or more easements and that were monitored

in 100% of the easements in which they appeared.UT ...... 163

TableTU IV.41 Restrictions that appeared in ten or more easements and that were monitored

in 85% or fewer of the easements in which they appeared.UT ...... 164

TableTU IV.42 Number and percentage of 39 easements using monitoring methods and

techniques.UT ...... 166

TableTU IV.43 Number and percentage of easements using monitoring methods and

techniques within size ranges of properties covered by the easement.UT ...... 167

TableTU IV.44 Easements for which meeting with landowner was reported as a monitoring

technique and size of monitoring staff.UT ...... 170

TableTU IV.45 Average effectiveness ratings for monitoring methods. Shaded methods are

those that were used for more than one easement.UT...... 174

TableTU IV.46 Restrictions appearing in five or more easements with average effectiveness

ratings lower than 3.0.UT ...... 175

TableTU IV.47 Restrictions appearing in five or more easements with average effectiveness

ratings of 4.25 or higher.UT ...... 176

TableTU IV.48 Purposes and level of monitoring.UT ...... 181

TableTU V.1 Number and percentage of easements that included the restriction “annual

meeting with landowner” by easement age (year signed).UT ...... 191

TableTU V.2 Number and percentage of easements that included “sustainable forestry

practices” and “professional forester” as restrictions by easement age (year signed).UT ...... 198

TableTU V.3 Number and percentage of easements that required a “forest management

plan” by easement age (year signed).UT ...... 202

TableTU VI.1 Percentage of 82 easements with purposes and restrictions in each easement language theme and the average number of purposes and restrictions in those

easements.UT ...... 205

TableTU VI.2 List of monitoring methods and techniques and the frequency of use.UT ...... 211

TableTU D.1 Percentage of 82 easements with purposes and restrictions in each easement language theme and the average number of purposes and restrictions in those

easements.UT ...... 243

TableTU D.2 Number and percentage of 82 easements that included at least one water-

related purpose or restriction, by easement holder.UT ...... 243

TableTU D.3 Number and percentage of 82 easements that included at least one water-

related purpose or restriction, by age of easement.UT ...... 243

TableTU D.4 Number and percentage of 82 easements that included at least one water-

related purpose or restriction, by size of easement.UT ...... 244

TableTU D.5 Number and percentage of 82 easements that included at least one technology

and extraction-related purpose or restriction, by easement holder.UT ...... 244

TableTU D.6 Number and percentage of 82 easements that included at least one technology

and extraction-related purpose or restriction, by age of easement.UT...... 244

TableTU D.7 Number and percentage of 82 easements that included at least one technology

and extraction-related purpose or restriction, by size of easement.UT ...... 245

TableTU D.8 Number and percentage of 82 easements that included at least one

development-related purpose or restriction, by easement holder.UT ...... 245

TableTU D.9 Number and percentage of 82 easements that included at least one

development-related purpose or restriction, by age of easement.UT ...... 245

TableTU D.10 Number and percentage of 82 easements that included at least one

development-related purpose or restriction, by size of easement.UT ...... 246

TableTU D.11 Number and percentage of 82 easements that included at least one forest

management-related purpose or restriction, by easement holder.UT...... 246

TableTU D.12 Number and percentage of 82 easements that included at least one forest

management-related purpose or restriction, by age of easement.UT ...... 246

TableTU D.13 Number and percentage of 82 easements that included at least one forest

management-related purpose or restriction, by size of easement.UT ...... 247

TableTU D.14 Number and percentage of 82 easements that included at least one ecosystem

and rare species-related purpose or restriction, by easement holder.UT ...... 247

TableTU D.15 Number and percentage of 82 easements that included at least one ecosystem

and rare species-related purpose or restriction, by age of easement.UT ...... 247

TableTU D.16 Number and percentage of 82 easements that included at least one ecosystem

and rare species-related purpose or restriction, by size of easement.UT ...... 248

TableTU D.17 Number and percentage of 82 easements that included at least one

recreation-related purpose or restriction, by easement holder.UT ...... 248

TableTU D.18 Number and percentage of 82 easements that included at least one

recreation-related purpose or restriction, by age of easement.UT ...... 248

TableTU D.19 Number and percentage of 82 easements that included at least one

recreation-related purpose or restriction, by size of easement.UT ...... 249

TableTU E.1 Number of easements with restriction, number of easements for which restriction was monitored, and percent of easements for which restriction was

monitored.UT ...... 250T

TableU E.2 Restrictions left out of secondary baseline analysis.U ...... 239 Table E.3 Average monitoring effectiveness for restriction (number of easements for which effectiveness rating was collected)...... 240

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LIST OF FIGURES

FigureU I.1 Regions used for geographical classification of WFCE sample.U ...... 18

FigureU III.1 Easement sample set by size of easement property in acres.U ...... 69

FigureU III.2 Easement sample set by age of easement (year signed).U ...... 69

FigureU III.3 Easement sample set by geographic location.U ...... 70

FigureU III.4 Easement sample set and monitoring survey sample set by size of easement

property in acres.U ...... 73

FigureU III.5 Easement sample set and monitoring survey sample set by age of easement

(year signed)...... U 73

FigureU III.6 Easement sample set and monitoring survey sample set by region.U...... 74

FigureU III.7 Easement sample set by size over time. Each bar represents 100% of the

easements in a given age class.U ...... 75

FigureU IV.1 Percentage of 82 easements by holder.U ...... 90

FigureU IV.2 Percentage of 82 easements by age (year signed).U ...... 90

FigureU IV.3 Percentage of 82 easements by size of property (acres).U ...... 91

FigureU IV.4 Percentage of 82 easements by geographic location.U ...... 92

FigureU IV.5 Percentage of 17 easements funded by the USDA Forest Legacy program. 93U

FigureU IV.6 Percentage and number (N) of 82 easements with water-related purposes.U.. 97

FigureU IV.7 Percentage and number (N) of 82 easements with water-related restrictions.

...... 98U

FigureU IV.8 Percentage of easements that included purposes related to "shoreline/riparian integrity" and "water quality" in aggregate (82 easements) and in each geographic

region.U ...... 99

FigureU IV.9 Percentage of easements that included restrictions related to "water rights," "manipulation of water bodies," and "water infrastructure." Data presented in

aggregate (82 easements) and in the Northwest and Southwest regions.U ...... 100

FigureU IV.10 Number of easements that included purposes related to "shoreline/riparian integrity," "habitat for fish/aquatic wildlife," and "water quality" by easement age

(year signed)...... U 104

FigureU IV.11 Percentage of easements that included restrictions related to "mining" and "drilling." Data presented in aggregate (82 easements) and in the Northwest and

Southwest regions.U ...... 110

FigureU IV.12 Percentage of easements in a given age class (year signed) that included

purposes related to "open-space values" and "restrict development."U ...... 112

FigureU IV.13 Percentage and number (N) of easements that included the purpose of

protecting "open-space values" in aggregate (82 easements) and by region.U ...... 116

FigureU IV.14 Percentage of easements in each age class (year signed) that included restrictions related to "roads," "commercial/industrial development," and "residential

development."U ...... 119

FigureU IV.15 Percentage of easements in each age class (year signed) that included forest management restrictions related to "baseline assessment," "professional forester," and "forest management plan." First age class (1985-1989) was not included in the

graph due to limited data...... U 129

xiii

FigureU IV.16 Percentage of easements in each age class (year signed) that included restrictions related to "maintaining wildlife habitat," "BMPs," and "sustainable

forestry practices."U ...... 131

FigureU IV.17 Percentage of easements in each age class (year signed) that included purposes related to "shoreline/riparian integrity," "rare species," "water quality," and

"habitat for terrestrial & aquatic wildlife."U ...... 140

FigureU IV.18 Percentage of easements in each age class (year signed) that included "ecological restoration" and introduction of non-native species" as purposes related

to ecosystem and rare species.U ...... 142

FigureU IV.19 Percentage of easements that included restrictions related to “ORVs" and

"snowmobiles" by easement holder.U ...... 147

FigureU IV.20 Percentage of 39 easements by size of property (acres).U...... 152

FigureU IV.21 Percentage of 39 easements by easement age (year signed).U ...... 153

FigureU IV.22 Percentage of 39 easements by easement holder.U ...... 153

FigureU IV.23 Percentage of 39 easements by geographic location.U ...... 154

FigureU IV.24 Percentage of 39 easements by number of monitoring professionals

(estimated full-time equivalent).U ...... 154

FigureU IV.25 Monitoring effectiveness for easements with and without a monitoring

protocol.U ...... 156

FigureU IV.26 Percentage of restrictions monitored by easement.U ...... 161

FigureU IV.27 Average percentage of restrictions monitored in easements by size of

property (acres) and number of easements (N) in size class.U ...... 162

FigureU IV.28 Average monitoring effectiveness for easements by size of property (acres)

and number of easements (N) in size class.U ...... 171

FigureU IV.29 Average monitoring effectiveness for easements by age of easement (year

signed) and number of easements (N) in age class.U ...... 172

FigureU IV.30 Average monitoring effectiveness for easements by number of monitoring personnel (estimated full-time equivalent) and number of easements (N) in

personnel class.U ...... 173

FigureU IV.31 Frequency of monitoring for easements by size of property (acres) and number of easements (N) in size class. Frequency is represented as "visits" per year. Visits include ground-level monitoring, aerial monitoring, satellite imagery and

landowner meeting.U ...... 177

FigureU IV.32 Percentage of purposes monitored by easement.U ...... 180

FigureU V.1 Number of easements in each age class (year signed) that were funded by the

USDA Forest Legacy program.U ...... 195

FigureU V.2 Percentage of easements in each age class (year signed) that referred to "Best

management practices" (BMPs).U...... 201

xiv

ABSTRACT

This study serves as a preliminary work toward gaining an understanding of working forest conservation easements (WFCEs) through a critical examination of two aspects of WFCEs that likely influence the effectiveness of this conservation tool: trends in easement language (from the years 1985 to 2003) and current monitoring methods. These two aspects are addressed in an easement comparison study and a monitoring survey study. The easement comparison study identified purposes, restrictions, and forest management requirements of a national sample of WFCEs over 1,000 acres in size, and organized this data into relevant themes (water, technology and extraction, development, forest management, ecosystem and rare species, and recreation). For each theme easement language was examined to identify trends by region, easement holder, easement age, and easement size. Custom-designed surveys were developed based on the specific language in each easement. These surveys were administered to monitoring professionals for both publicly-held and privately-held easements, and provided insight on the diverse set of monitoring regimes in place for WFCEs across the country. The surveys revealed that while the majority of WFCEs are monitored at some level, a range of methods and associated effectiveness rankings exist. Ground-level monitoring was the most common monitoring method reported, but newer easements tended to involve a greater variety of methods. The value of an “annual meeting” was often emphasized by monitoring professionals, and analysis of the data suggested that “annual meetings” increase overall monitoring effectiveness. Based on the evaluation of trends in easement language and on-the-ground testimonials, land conservation professionals need to ensure that connections are being made between easement language and monitoring practices. Through this research, easement drafters and monitoring professionals will further understand the trends in easement language and the status of current monitoring regimes, enabling them to better direct future efforts.

xv 16

I. INTRODUCTION

I.1 Why Protect America’s Forests?

There are approximately 488 million acres of forestland in the United States held by nonfederal owners, including state and local governments, conservation organizations, timber companies, private investment firms, and individual owners (National Research Council 1998). Approximately 430 million of these acres are owned privately (Best and Wayburn 2001). Between 1982 and 1997, 21.5 million acres of private forestland was converted to other uses (Pacific Forest Trust 2001). A 2002 House Appropriations Committee report noted that the rate of forestland loss between 1992 and 1997 represented a 70% increase over the previous decade (U.S. House of Representatives 2002). To exacerbate this problem, the average age of working forestlands in the U.S. has become increasingly younger in order to satisfy demand for near-term economic returns on shorter harvest and regeneration cycles (Pacific Forest Trust 2001). For example, the average age of harvest for a commercial stand in the Pacific Northwest has decreased from 80 years to 40 years (Pacific Forest Trust 2001).

This conversion of forestland and associated fragmentation greatly diminishes the ability of forests to provide a number of valuable ecological and economic services. These include the conservation of biological diversity, the buffering of sensitive areas and reserves, the maintenance of the integrity of aquatic systems, and the sustainable production of wood products (Lindenmayer and Franklin 2002). Protection and responsible management of forestland can help ensure quality ecosystem function and promote vibrant local economies. Working forest conservation easements represent one large and increasingly important approach to reaching these goals.

I.2 What is a Working Forest Conservation Easement?

A Working Forest Conservation Easement (WFCE), like a conventional conservation easement, is a legal agreement between a landowner and a government entity or nonprofit conservation organization. The grantor, the landowner, transfers property rights to the grantee, either the government or a nonprofit organization. Property rights transferred in

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a conservation easement can include development rights, mining rights, and exclusion rights. Unlike standard conservation easements, WFCEs are applied to working forests, lands that are “actively managed for goods and/or services that have a monetary value in the current marketplace, such as timber, recreation, and water supply protection” (Lind 2001b). This emphasis on forestry manifests itself in the WFCE in two forms. First, the easement may contain purposes such as maintaining “silvicultural resources,” “ecosystem health,” or “quality of timber resources.” Second, the easement will contain a variety of forestry restrictions of requirements, often compiled in a forest management section or separate forest management plan.

The advantages of WFCEs may be loosely grouped into three main categories: scale, finances, and property rights. First, large tracts of land may be protected from development and/or subdivision with WFCEs. In other words, landscape-scale conservation protection is possible and entire ecosystems may be protected with a single WFCE. Second, WFCEs have financial benefits. Land trusts and government organizations may protect large areas of land without the expense of purchasing the property outright. In turn, as an incentive to enter into WFCEs, landowners receive property tax, income tax, and, if applicable, estate tax benefits. Third, WFCE lands remain in private ownership, and are therefore more palatable to private landowners than government regulation. A case in point is the U.S. Department of Agriculture’s Forest Legacy Program, created to purchase conservation easements and administered by the Forest Service. From FY1997 to the present the program has received increasingly large budget appropriations under both the Clinton and Bush administrations. The program grew from $4 million in 1998 to $68.8 million in 2003. Total investments in Forest Legacy over the period were $234.8 million (Cooksey 2003).

I.3 The Study

WFCEs have been used with greater frequency by governmental entities and private conservation organizations to protect forested landscapes since the mid-1980s. As such, it is desirable and necessary to closely examine the trends in legal language and the status of current monitoring of WFCEs. By analyzing these two aspects of WFCEs, this study

Chapter I - Introduction 18 aims to provide land conservation practitioners with a fact-based analysis of WFCEs that can be used to inform relevant decision-making and to take the first step in determining the effectiveness of this tool in attaining conservation goals.

I.3.1 Description

This study was completed over a one-and-a-half year period by seven Masters students at the University of Michigan’s School of Natural Resources & Environment. The group collected and read 82 WFCEs representing every region of the country (see figure I.1). The easements were then applied to a matrix that catalogued all easement purposes and restrictions. This information was then used to create customized surveys for a 39- easement subset of the larger sample. Monitoring surveys were then conducted with the 23 land managers responsible for monitoring these 39 easements. These two data sets were analyzed for important trends. These findings then informed recommendations for improved language and monitoring regimes on working forest conservation easements. The easements in this study represent 2,179,544 acres of protected forestland in the United States.

Figure I.1 Regions used for geographical classification of WFCE sample.

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This project was conducted in cooperation with The Nature Conservancy’s (TNC) Upper Peninsula (MI) Conservation Center. TNC is an international conservation organization that is devoted to preserving the plants, animals, and natural communities that represent the diversity of life on Earth by protecting the lands and waters they need to survive. TNC, in general, and its Upper Peninsula (MI) Conservation Center specifically, are interested in determining whether or not the use of WFCEs furthers its conservation mission and are also interested in research that will lead to a comprehensive, science- based methodology for monitoring large WFCEs.

I.3.2 Importance of Research and Scope of Analysis

This research serves as a preliminary work to gain an understanding of the legal language used in WFCEs across the country as well as the techniques and methods used to monitor these easements. The relative youth of the majority of easements in the study set and the long-term nature of many ecosystem processes limits the possibilities of directly measuring the effectiveness of WFCEs at the present time. Whether the overall goal(s) of WFCEs have been achieved is beyond the scope of this project. This study focused on evaluating two aspects of WFCEs: trends in easement language (from the year 1985- 2003), and current monitoring techniques and methods. Through this research, monitoring professionals, as well as easement drafters, will gain a better sense of the work that is currently being done and use this understanding to best direct future efforts.

I.3.3 Objectives

This study was guided by five primary objectives: 1) Identify important trends in the language of WFCE documents; 2) Identify the range of techniques in use for monitoring easement restrictions and purposes on WFCEs; 3) Assess the perceived effectiveness of monitoring techniques by the personnel responsible for the monitoring of WFCEs; 4) Determine the correlations between easement restrictions and monitoring on WFCEs; and

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5) Utilize the data gathered from meeting objectives one, two, and three to inform a number of recommendations aimed at improving the effectiveness of easement language and improving methodologies for monitoring WFCE purposes and restrictions.

I.3.4 Research Questions

In order to determine the important trends in easement language and the status of current monitoring, a number of research questions were addressed. These research questions, with corresponding chapter numbers, can be found in Table I.1 below. Before these questions could be answered however, a number of background issues had to be researched, providing the appropriate context for the study. These questions, detailed in the background and literature review chapter, are as follows: • What are the defining characteristics of WFCEs? • What are the current threats and barriers to forest land conservation in the U.S.? • What is the relevant case law dealing with conservation easements? • How extensive is the literature on the monitoring of large conservation easements?

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Table I.1 Research questions with associated chapter numbers. RESEARCH QUESTIONS CHAPTER

What are the most discernable trends in easement language in IV working forest conservation easements?

How has easement language (purposes & restrictions) addressing water issues changed by easement holder, by IV.1 age, and by size?

How has easement language (purposes & restrictions) addressing technology and extraction issues changed by IV.1 easement holder, by age, and by size?

How has easement language (purposes & restrictions) addressing development issues changed by easement IV.1 holder, by age, and by size?

How has easement language (purposes & restrictions) addressing ecosystem and rare species issues changed by IV.1 easement holder, by age, and by size?

How has easement language (purposes & restrictions) addressing forest management issues changed by easement IV.1 holder, by age, and by size?

How has easement language (purposes & restrictions) addressing recreation issues changed by easement holder, IV.1 by age, and by size?

What are the most discernable trends in monitoring techniques in IV working forest conservation easements?

How many easements in the study set are being monitored IV.2 and what is being monitored on these properties?

What monitoring techniques are being used across the study set? Do those monitoring techniques differ according to the size of the property, age or holder of the easement, by IV.2 region, or by personnel capacity?

How effective are available monitoring techniques IV.2 perceived to be?

Is monitoring for easement purposes being performed? IV.2

How are changes in easement language over time reflected in current monitoring techniques? (Do monitoring techniques used IV.3 on WFCE properties reflect changes in easement language over time?)

What are the easement restrictions that are both most often mentioned in WFCEs and most often monitored on the ground? IV.3 What are the significant disconnects between easement language and current monitoring?

What are the possible applications for the improvement of V WFCEs as a conservation tool?

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II. LITERATURE REVIEW

II.1 Working Forest Conservation Easements

A WFCE, like a conventional conservation easement, is a legal agreement between a landowner and a nonprofit conservation organization or governmental entity that permanently limits the uses of the land in order to protect specified conservation values (Diehl and Barrett 1988; Lind 2001b). Unlike an open-space or no-build easement, a WFCE typically includes language that guides forest management practices in order to protect certain forest values. A WFCE deals exclusively with forest lands that are “…actively managed for goods and/or services that have a monetary value in the current marketplace, such as timber, recreation, and water supply protection” (Lind 2001b, 2). WFCEs can prohibit damaging forest practices, promote a desired forest condition, promote landscape-scale conservation by dictating certain management regimes, and can contribute to sustaining local timber-based economies (Lind 2001b).

Two distinct characteristics of a WFCE are the potential for landscape-scale conservation and sustainable forestry. These advantages are usually the primary goals of easement holders and often are significant factors in a landowner’s decisions to sell or place an easement on their land (Lind 2001b). Landscape-scale conservation, as defined by The Nature Conservancy, is the conservation of areas large enough to contain functioning ecosystems that support crucial natural processes (The Nature Conservancy 2002). In her study of WFCEs in New England, Boelhower called for the development of practical approaches to landscape-scale forest management (1995). A subsequent study showed that the use of working forest conservation easements to protect large forested landscapes in both the Northeast and other regions of the country was increasing (Levitt 2003). The Pingree easement, protecting approximately 762,000 acres, was highlighted in the study for the influence its innovative financing and monitoring technique had on landscape- scale conservation (Levitt 2003).

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Recent research has focused on the many large-scale forestland conservation deals in the Northeast and their implications for sustainable forestry. Best and Wayburn noted that the forest management techniques used combine both high standards of ecosystem protection and commercial forestry, suggesting this approach could serve as a model for other landowners interested in conserving forest resource values (2001). Sustainable forest management then is an important component of WFCEs and the degree to which it succeeds in the above-mentioned projects has serious implications for other WFCEs (Best and Wayburn 2001). There are many definitions of sustainable forestry, but one of the most comprehensive is given by Jenkins and Smith in The Business of Sustainable Forestry: The sustainable forest is an aggregation of trees that people preserve in a dynamic social and natural environment for the ecological qualities, services, and yields they want. Active effort is required to prevent unwanted changes that human activities and natural phenomena would usually produce. Preservation requires investment to control forest uses and the social forces that determine them; to conserve and replace necessary ecological capacities; and to develop the organizations, policies, and technologies that forest replacement, maintenance, and enhancement are likely to need. The sustainable forest strikes a dynamic balance among economic, environmental, and social forces that people control to prevent the loss of whatever forest state they prefer (1999, 12-13).

II.2 Defining Characteristics: Forest Management Requirements

As the name implies, forest management is the cornerstone of all working forest conservation easements. However, not all WFCEs address forest management in the same way. Two prominent studies, one by Lind entitled Working Forest Conservation Easements: A Process Guide for Land Trusts, Landowners, and Public Agencies (2001b) and the other by Boelhower entitled Forests Forever (1995) detailed the major ways easement holders approach forest management in WFCEs. These methods are not mutually exclusive and may be used in combination.

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II.2.1 Purposes

Forestry purposes, as well as other conservation purposes, are listed in the Purposes or Recitals section of the easement. Lind contended that if specific forestry purposes are not articulated, future generations interpreting the easement may not deem forest conservation or management to be significant (2001b). Land trusts, responding to differing landowner needs, have developed three approaches to incorporating forestry purposes. First, forest purposes may exist in an enumeration of equally weighted purposes (Lind 2001b). Second, forestry purposes may be stated more specifically; for example a particular forest type may be listed as a purpose (Lind 2001b). Third, easements may explicitly prioritize purposes, designating primary and secondary purposes (Lind 2001b).

II.2.2 Restrictions

Restrictions are negotiated by the landowner and easement holder during the drafting of the document (Lind 2001b). Specific forest management restrictions or requirements are often found in a separate section often entitled Forest Management Restrictions (Lind 2001b). These restrictions can protect specific resources or identify general standards for acceptable management (Lind 2001b). One study advised land trusts to avoid excessive prescriptive language and instead address “big picture” issues such as buffers around water bodies, special management areas for wildlife, and limitations on clear-cuts (Lind 2001b).

Since an easement may protect land in perpetuity, flexible and adaptive restrictions are necessary to meet future market changes and technological advances (Lind 2001b). Moreover, restrictions should be measurable and be able to be monitored. In order to be effective and defensible in court, Lind recommended that restrictions relate to stated purposes of the easement and that easements only include restrictions necessary to protect the core purposes of the easement (2001b).

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II.2.3 Forest Management Plans (FMPs)

Forest Management Plans (FMPs) describe how forest stands will be harvested and managed by the landowner (see glossary of terms). Recent studies endorsed the requirement of FMPs, and the concurrent approval of them by professional foresters, in WFCE documents (Boelhower 1995; Lind 2001b). The incorporation of an FMP confers many advantages upon both the landowner and easement holder, including a decrease in the level of detail and prescriptive language needed in the easement itself, the provision of clear guidance for monitoring, and management flexibility that allows for future changes in technology and landowner needs (Lind 2001b).

While local conditions and landowner priorities necessitate that the details of every FMP differ, Lind (2001b) found that FMPs typically share certain terms. These terms include: a list of the items to be addressed by the FMP, qualifications of the preparer (usually a professional certified forester), a timeframe for the preparation of the plan, a review and modification time schedule (usually every 5 to 10 years), and a mechanism for easement holder review and/or approval (Lind 2001b).

FMPs have been included in WFCEs in four primary ways: (1) the forest management is in accordance with a written plan approved by the easement holder, (2) the forest management is in accordance with a written plan, but approval by the easement holder is not required, (3) forest management is tailored to the sites and soils of the property, but approval by the easement holder is not required, and (4) forest management is not required (Boelhower 1995). Boelhower’s (1995) study found that the third approach was the most common (used by 48% of organizations), followed by the first and second approaches (used by 35% and 15% of organizations respectively). These approaches highlighted the importance placed upon review and approval of the FMP by the easement holder. Several factors influenced whether an organization seeks only review of the FMP or both review and approval of the FMP: landowner acceptance of veto power, easement holder expertise and financial resources, easement holder interest in engaging in forest management, and state agency regulation of forest management activities (Lind 2001b).

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Lind identified two points in time for FMP preparation: either before closing on the easement or prior to planned timber harvest activities (2001b). While Lind (2001b) found that preparing the plan before closing the easement can clarify expectations and facilitate the negotiation of terms, if a landowner does not foresee harvesting on the property in the near future preparing this plan may be delayed in order to save money.

In addition, Lind (2001b) found that wildlife habitat, soil conservation, water quality, and aesthetics protection should be incorporated into an FMP. Thus, parties to a WFCE should consider the following issues in writing the FMP: • the landowner’s vision for the property, or a desired future condition, • a natural resources inventory, documenting the timber resource, endangered species, cultural features, geological features, and other notable attributes, and • the activities or action plan section providing detail on management activities to be performed on the land (Boelhower 1995; Lind 2001b).

II.2.4 Best Management Practices (BMPs)

Best management practices are voluntary guidelines written by public agencies to assist landowners and land stewards in minimizing ecological damage during timber harvest activities and to standardize land resource management practices. Drafters of conservation easements often draw upon the expertise of local and state level agencies by referencing state and local BMPs in the easement document (Lind 2001b). When referencing BMPs in easements, national organizations must be aware that BMPs can vary greatly between states (Lind 2001b). WFCEs have cited BMPs that provide general forestry recommendations and specific BMPs with more narrow focuses (e.g. road construction, timber harvest in riparian areas, pesticide application, and erosion control) (Lind 2001b). Yet as BMPs originated under of the Clean Water Act, most BMPs focus on forest management only to the degree that forestry impacts water quality; therefore, BMPs have only limited effectiveness as a forest management tool (Lind 2001b). For

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this reason BMPs should always be used in conjunction with a forest management plan or specific easement restrictions (Lind 2001b).

Researchers have investigated landowner compliance with BMPs; in a study of the effectiveness of BMPs on private forest lands in Ohio, 62% of 110 sites showed excellent or good compliance with BMPs (McClenahen, et al. 1999). To date, no research has focused on the effectiveness of BMPs on large WFCEs.

II.3 Who Utilizes WFCEs?

Working forest conservation easements are used as a conservation tool by federal and state governmental entities and by non-profit conservation organizations (Lind 2001b). Conservation easements held by the federal, state or local government are referred to as publicly-held, or public, easements; conservation easements held by land trusts and other non-governmental organizations are referred to as privately-held, or private, easements. Two sets of statutes are of fundamental importance in determining eligibility to hold conservation easements: federal statutes provide tax benefits, while state statutes provide a legal basis for enforcement. Under either set of laws there are virtually no restrictions on who may be a grantor, assuming the grantor has the proper purposes. However, both federal and state laws address eligibility to hold a conservation easement.

While adherence to federal tax laws is not required for a conservation easement to legally exist, all conservation easements are drafted to be eligible for tax benefits. Under the federal tax code, public entities and 501(c)(3) organizations with the purpose of preserving natural resources are eligible to hold conservation easements (Morissette 2001). Some state laws remain silent as to who may hold a conservation easement while other states are much more specific and require that only the state government or a 501(c)(3) organization may hold the easement (Cheever 1996).

Among the national organizations that actively acquire WFCEs are The Nature Conservancy, The Conservation Fund, and the Trust for Public Land (Lind 2001b). A partial list of state and regional organizations that utilize this tool include the Society for

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Protection of New Hampshire Forests, the Vermont Land Trust, the Pacific Forest Trust, and the Forest Society of Maine (Lind 2001b).

II.4 What May Be Protected?

The state enabling laws and federal tax laws place limitations on which purposes and restrictions are enforceable and are tax deductible. Valid purposes for conservation easements vary by state. The California conservation easement statute’s list of purposes is typical: “retain land predominantly in its natural, scenic, historic, agricultural, forested, or open space condition” (Cheever 1996).

Under federal tax law the conservation easement must meet at least one of several conservation purposes to be eligible for tax benefits: (1) The preservation of land areas for outdoor recreation by, or the education of, the general public; (2) The protection of a relatively natural habitat of fish, wildlife or plants, or similar ecosystems, (3) The preservation of open space (including farmland and forest land, where such preservation is: (a) For the scenic enjoyment of the general public, or (b) Pursuant to a clearly delineated federal, state, or local governmental and conservation policy, and will yield a significant public benefit, or (c) The preservation of a historical land area or certified historic structure. IRC § 170(h)(4)(A).

II.5 Special Federal and State Conservation Programs

Conservation easements are considered a valid conservation tool at both the federal and state government level as shown by federal and state programs funding the purchase of conservation easements. Often these programs superimpose other requirements in addition to those required by federal tax law and the state enabling laws. As examples of

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such programs the Forest Legacy Program, the premier federal program, and the Land for Maine’s Future program are described below.

II.5.1 USDA Forest Service, Forest Legacy Program

The Forest Legacy Program (FLP) was established in 1990, as part of the Farm Bill, to protect sensitive forest areas from conversion to non-forest uses. Grant funds were first made available to states in 1996. Administered by the Forest Service, the program is a partnership between the federal agency, state foresters, local governments, land trusts, and landowners. The goal of the program is to “mitigate forest fragmentation and loss of forested landscape” (Cooksey 2003).

FLP monies are meant exclusively for the acquisition of land and easements, and not for stewardship, monitoring, or management activities. As a requirement of the program, only governmental entities can hold an FLP-funded easement. Since 1996, the Forest Legacy Program has enjoyed a steady increase in appropriations. In fiscal year 1996 FLP was funded at $3 million. The President’s proposed budget for the program in fiscal year 2004 was $90.1 million. Since 1992, 34 states have joined the program, accounting for 118 completed projects. As of September 2003 over 430,000 acres was protected (Cooksey 2003).

II.5.2 Land for Maine’s Future

The State Planning Office of Maine oversees the Land for Maine’s Future program, which has the stated purpose of acquiring public lands and protecting working forests in Maine. Established in 1987 when Maine citizens voted to fund a $35 million bond to purchase lands of statewide importance, Land for Maine’s Future seeks matching funds at a ratio of at least $1 of match for every $2 of public funds expended (Land for Maine’s Future 2002).

The program’s leadership determined that WFCEs “can provide an effective and economical alternative to fee acquisition where the conservation and recreational needs

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of the people of Maine can be served by continuing private ownership with certain limitations on land use” (Land for Maine’s Future 2002). To effectuate this policy the program administrators developed guiding principles and easement drafting guidelines that must be followed for WFCEs to be eligible for funding (Land for Maine’s Future 2002). These guiding principles called for no additional non-forestry or non-recreational development, strict limits on subdivision, public access, and a commitment by the landowner to produce a perpetual yield of timber and pulp products (Land for Maine’s Future 2002). To date, 278,519 acres of land have been protected with WFCEs (Glidden 2004).

II.6 Easement Drafting

Several studies outlined the importance of stewardship for the management and enforcement of conservation projects, including easements (Lind 1991; Noon 2003; Rod 2003; Hahn 2000). In fact, some researchers assert that an effective and comprehensive monitoring program is the defining feature of a successful easement program (Hahn 2000). Therefore, monitoring programs that measure environmental health and easement compliance should be designed for WFCEs. By making stewardship and monitoring part of the conservation strategy from the beginning, the conservation of a particular area is likely to be more efficient and effective over time (Rod 2003). In addition, monitoring experts suggested involving the employee(s) responsible for monitoring in the easement drafting process (Rod 2003).

Studies on the design of ecosystem monitoring programs show that good monitoring programs rely on indicators chosen for their ability to measure system change and integrity (Lindenmayer and Franklin 2002; Noon 2003; Carignan and Villard 2002). Research focusing on identifying indicators for monitoring biodiversity demonstrated that the process of specifying monitoring goals and determining appropriate indicators to assay those purposes is fundamental to successful monitoring programs (Noss 1990). Since monitoring is a tool and not an end unto itself, the success of a monitoring program depends in large part upon drafting an easement document with restrictions written specifically to achieve certain purposes or conditions.

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II.6.1 Easement Purposes

According to one stewardship guide, specific stewardship and management purposes for a protected area should influence the drafting of the easement document (Lind 1991). Similarly, monitoring experts advise negotiating parties to specify which environmental and ecological aspects or conditions the easement protects (Rod 2003). Research focusing on the conceptual issues in monitoring ecological resources asserted that monitoring is a dynamic process that accounts for changing environmental conditions and land use patterns (Noon 2003).

In addition to using conservation goals and purposes to guide easement drafting, several experts stressed the importance of making provisions clear and enforceable (Lind 1991; Rod 2003). For example, if a primary goal of the easement is to protect water quality, it is important to include specific provisions in the easement that promote water quality, such as buffers of a specified size on all water bodies or restrictions on pollution of water bodies. These specifics improve clarity and future interpretation, as well as making them easier to defend in court. Stout contended that, in order to make monitoring more effective, conservation organizations should think about how to monitor restrictions during the easement drafting process (1993). If the provisions of an easement are either too prodigious, too numerous, or too ambiguous, any monitoring program will provide inadequate information for making future management decisions. Thus, the monitoring program implemented on a WFCE may be controlled by the available resources and organizational capacity of easement holders. In addition to using clear, enforceable provisions when drafting an easement, Lind recommends that draftees avoid unnecessary, irrelevant, and unmonitorable restrictions (1991). This process enables easement holders/managers to focus on monitoring techniques that best enable them to effectively enforce and manage the protected area (Lind 1991; Rod 2003).

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II.6.2 Baseline Documentation

Experts contend that after including monitoring and stewardship considerations in the easement drafting process, the most important aspect of an effective easement and monitoring program is baseline documentation (Lind 1991; Rod 2003). Baseline documentation is important because it: (1) provides documentation of resource values, (2) is required by IRS to obtain tax deductions, and (3) provides an initial data point against which subsequent data may be compared (Lind 1991).

WFCEs include timber harvesting and other management activities that impact the non- timber conservation values stipulated in the purposes and goals of easements (e.g. wildlife habitat or forest health); therefore, complete baseline documentation may be used in drafting provisions to protect non-forestry values (Lind 2001b). As WFCEs differ by size, geography, easement holder, landowner, management goals, etc., not all monitoring techniques are equally effective in terms of cost and measurement of data. Baseline data should be used to develop monitoring programs (Rod 2003). Without planning for monitoring in the early stages of easement drafting, conservation managers run the risk of implementing a monitoring program that does not adequately address the purposes of the easement, wastes money measuring unimportant data, and ultimately results in ineffective management decisions.

II.7 Landowner Relations

In a stewardship guide for conservation easements, Lind (1991) claimed that a strong stewardship program includes informed and cooperative landowners. Establishing good relationships with landowners allows easement-holding organizations to communicate the easement’s purposes and goals, and involve these important stakeholders in the stewardship of the easement. Furthermore, Lind (1991) asserted that good landowner relationships reduce the chances that owners will violate the easements.

By debunking the idea that landowners are simply potential easement violators, easement holders can recast their relationships with landowners as project partners and promote

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positive rather than antagonistic relationships (Ratley-Beach 2002). For example, the Vermont Land Trust (VLT) has embraced efforts to improve relations with landowners, and considers such relationships fundamentally important to the long-term success of its easement program. VLT hired a full-time staff person to manage landowner relations and services, and full-time field assistants to conduct monitoring and landowner visits (Ratley-Beach 2002). VLT maintained that landowner relationships are the “key to long- term success” and that despite the additional upfront cost, working with landowners to improve stewardship efforts “will be a bargain in the long run by decreasing easement violations and the risk of legal disputes” (Ratley-Beach 2002, 9).

Assuming that good landowner relations result in landowners who understand the goals of the easement, know how their land functions to achieve those goals, and will act in good faith, then landowners can be considered the first line of defense against potential easement violations as well as good sources of information for monitoring programs (Ratley-Beach 2003). Not only do improved landowner relations benefit stewardship efforts, but some land trusts have also discovered that efforts to improve and maintain landowner relations improve the perception of their organizations. As changes in land ownership become more prevalent in the near future, positive public perception may increase donations to land trusts. Therefore, the type and quality of landowner relations may play an instrumental role in easement monitoring and stewardship efforts. No research has focused on whether it is possible to foster good relations with industry and institution landowners who have WFCEs on their properties.

II.8 Monitoring Conservation Easements

Monitoring is the systematic evaluation of the success of a particular management program over time and involves the measurement and evaluation of data as related to the easement’s management goals (Lindenmayer and Franklin 2002). Since the success of management goals cannot be assessed without adequate monitoring, the monitoring of conservation easements is essential to assessing whether easements achieve conservation goals. Responsible stewardship requires the ability to assess environmental conditions

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and human impacts. For this reason, programs must continuously monitor ecosystem change and the uses and restrictions in an easement.

Monitoring can create more effective management of conservation areas by indicating which conservation strategies succeed and which fail. Several researchers assert that monitoring is the foundation for “adaptive management,” by which new knowledge about managing resources and ecosystems will be developed and systematically incorporated into management plans (Lindenmayer and Franklin 2002; Saterson 1996; Ringold et al. 2003). Research on ecosystem management indicated that conservation efforts in the past fifteen years have moved away from management within administrative and political boundaries, and have focused increasingly on the regional, landscape, and ecosystem level (Yaffee 1996; Wondolleck and Yaffee 2000). Based on this trend towards larger ecosystem-based, landscape-level conservation approaches, easement holders must accommodate imperfect information and knowledge. This is presumably the case with WFCEs, considering they often embody long term landscape-level conservation by protecting vast forested areas (ranging from hundreds of acres to hundreds of thousands of acres), and encompass a complex array of ecological systems and habitats. Adequate monitoring programs will serve to validate WFCEs as important conservation tools.

Monitoring is important for several reasons (Rod 2003). First, monitoring detects ecosystem change over time by regularly documenting conditions and changes at a variety of sites on a property. Information on environmental conditions and changes provides a “snapshot” of the area at a particular time, against which subsequent monitoring data can be compared. Second, regular visits to the property can reduce violations of the easement, enforce the uses and restrictions stipulated in the easement, as well as detect threats to the conservation values of the area. Third, a collection of monitoring data creates a documented history of the site, which can have implications for current and future management efforts. Fourth, regular monitoring enables an easement holder to interact with the landowner, which increases owner cooperation, understanding of the easement, and consequently, can often decrease the potential for violations. In addition, research by Noon (2003) contended that monitoring is increasingly being

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recognized as a complex but essential element in the effort to limit human activity on a tract of land in order to maintain ecological integrity.

II.8.1 Available Monitoring Techniques

A variety of monitoring techniques are available for use on conservation easements (Lind 1991; Lind 2001b; Noss 1990; Rod 2003; Salafsky and Margoluis 1999). Factors that influence the selection of monitoring techniques include the size of the parcel, the specific restrictions, the degree of precision needed, and the resources and capacity of the monitoring organization. The majority of conservation easement monitoring techniques can be applied to WFCEs, however since WFCEs are applied to a “working” landscape, some techniques chosen for WFCEs may differ from the norm.

II.8.1.a Site Visits or Ground Monitoring

Site visits involve individuals surveying the protected property in person and obtaining a firsthand account of its condition. Studies and recommendations by monitoring experts show that this technique is appropriate for easements small enough to walk, or for spot- checking larger easements (Lind 1991; Rod 2003). Since most WFCEs are large, and cover vast forested landscapes, on-site visits require a significant investment of human capital, and may not be a viable option. In a study done by Levitt (2003) on the innovative new monitoring protocol developed for the 762,192 acre Pingree easement in Maine, ground monitoring is considered to be the most expensive technique for a landscape-scale easement. It is, however, effective for easements with restrictions that require close inspection, such as limits on certain recreational uses or observing sources of water pollution (Lind 1991).

II.8.1.b Photo-point Monitoring

Photo-point monitoring is a popular technique used to provide an objective “snapshot” of the condition of certain areas on a protected property (Rod 2003). Typically, the monitor chooses several photo sites from which to photograph and document how an aspect of the property changes. This technique has two main advantages: it is relatively objective and easy to use. First, since this method provides an objective measure of how an area

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changes over time, it is useful as a means of comparing and contrasting current conditions with historical or reference conditions. This technique also limits differences inherent in written observations from site visits by different individuals, documents specific changes and conditions that may be difficult to describe, and is relatively inexpensive. Second, comparing “before and after” photographs is relatively easy and will illustrate the landscape/ecosystem change. Photo-point monitoring may be effective for WFCEs by documenting, for instance, an area of forest where limited, selective logging is allowed.

II.8.1.c Indicators

Studies by Carignan and Villard (2002) and Noon (2003) defined an indicator as an element, process, or aspect of an ecosystem whose existence, absence, abundance, or overall health is indicative of the health of the entire ecosystem. According to these studies, an indicator ought to be: (1) sensitive enough to provide detection of change in or threats to ecosystem health, (2) distributed adequately throughout the area of interest, (3) cost effective and easy to measure, and (4) relevant to conservation and management goals (Carignan and Villard 2002; Noon 2003).

Many researchers have studied the importance and potential for using indicators to illustrate ecosystem change as well as how to effectively identify such indicators for particular conservation targets (Carignan and Villard 2002; Noon 2003; Noss 1990). In a study of indicators for biodiversity, Noss stated that while the concept is controversial, indicators are becoming increasingly popular and there is a long-standing tradition of using indicator species to monitor ecological and environmental conditions (1990). Opponents countered that so-called indicators do not adequately demonstrate environmental trends or changes in conditions (Noss 1990). Nevertheless, indicators such as “keystone species,” continue to be used in wildlife and habitat management policy.

Indicators should relate to an easement’s purposes, the goal(s) of the specific monitoring program, the questions that managers want answered through the monitoring process, and

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the scale or level at which monitoring will occur (Noss 1990; Carignan and Villard 2002). Noss provided a comprehensive discussion of how to determine which indicators to use in a monitoring program (1990). His research was focused primarily on monitoring biodiversity, but the strategies for selection of bioindicators can be applied to WFCEs. Although some indicators can be chosen easily, more research needs to be done to select optimal indicators for ecological trends and changes. Indicators that are highly successful at detecting such trends and changes in ecological conditions have great potential for monitoring WFCEs.

The Canadian Forest Service initiated Canada’s Model Forest Program in the early 1990s in an effort to identify and develop indicators of forest health and sustainable forest management (von Mirbach 2000). Through this program, eleven “model forests” were identified, where sustainable forest management practices and indicators are developed and tested. Since forest ecosystems and conditions differ across Canada, each forest in the Model Forest Program sought to develop indicators specific to local and regional conditions. These indicators and management practices were developed by a partnership comprised of representatives with different social, economic, and environmental interests in forest management, which purportedly led to more informed and fair forest management decisions (von Mirbach 2000). A user’s guide created to disseminate the results of the Model Forest Program provided local level indicators of sustainable forest management for each model forest (von Mirbach 2000). No research has addressed whether the trend to include BMPs in WFCEs reflects a parallel effort to standardize indicators and sustainable forestry practices in the United States.

II.8.1.d Remote Sensing

As demonstrated by the monitoring protocol developed for the 762,192 acre Pingree easement in Maine, remote sensing is especially useful for monitoring large areas and forested landscapes (Levitt 2003; Sader and Reed 2003). In a report describing the monitoring protocol developed for the Pingree easement, remote sensing was defined as a technique that gathers, interprets, and evaluates data on a forested area using: (1) aerial photography, (2) Geographic Information Systems (GIS), or (3) satellite imagery (Sader

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2002). By making comprehensive monitoring possible without sending personnel to ground monitor areas of a forest, remote sensing decreases the organizational resources required for monitoring (Levitt 2003). Remote sensing can be used for many forestry applications, including terrain analysis, forest management, reforestation, forest inventories, forest cover type, the delineation of burned areas, and mapping of clear-cut areas (Ross 2003). Thus, remote sensing techniques offer a practical alternative to expensive and time-consuming ground monitoring methods.

II.8.1.e Aerial Photography

As with photo-point monitoring, the consistent periodic use of aerial photographs effectively illustrates changes in ecosystem conditions. Aerial photography is a good method for monitoring restrictions on development, clear-cuts, buffers on water bodies, etc. Although this technique can be expensive if a conservation organization has to arrange for the flight and photography, it may be less expensive and more comprehensive for larger WFCE parcels than site visits or photo-points. Lind (1991) contends that aerial photography is useful because it provides a different perspective that may supplement site visits and even expose issues that ground monitoring initially would not have found. This popular technique for monitoring large properties may be especially useful for monitoring WFCEs, which can cover large areas of forest.

II.8.1.f Satellite Imagery

Satellite imagery provides images of an easement area at specific times, which can be compared over time to detect trends or changes in forest conditions. Satellite imagery makes it possible to monitor changes in forest cover, such as harvests and reforestation. For example, Sader and Reed (2003) described how the Maine Image Analysis Laboratory at the University of Maine has developed an algorithm for detecting disturbance in forest canopy using satellite imagery. Satellite imagery is also currently being implemented by the New England Forestry Foundation (NEFF) as part of a three level monitoring program on the Pingree easement (Sader and Reed 2003). Levitt explained how satellite imagery, unlike aerial photography, allows Pingree easement researchers to evaluate the entire easement area quickly at a comparatively low cost per

Chapter II – Literature Review 39 area (2003). Given the large size of many WFCEs, satellite imagery is considered a very promising tool for monitoring WFCEs.

II.8.1.g Geographic Information Systems (GIS)

In GIS, digitized data is transformed into “layers”, which can then be overlaid in any combination (usually over an aerial or satellite photograph of the area) to discern trends or changes in forest conditions. The Society for the Protection of New Hampshire Forests (SPNHF) has developed a GIS-based method to inventory forests (Lind 2001a). Personnel on the ground enter data, such as vegetative species counts, timber volumes, wildlife species, etc., which is then turned into usable GIS layers that can be compared and interpreted. Paul Doscher, Conservation Director for SPNHF, suggested that, “perhaps this tool could help us be sure we are documenting key ecological values on easement properties and then help us have confidence that our monitoring is sufficient to protect them” (Lind 2001a, 3).

II.8.1.h Combinations of Techniques

Often, the ideal monitoring program will include a combination of the techniques noted above. For example, Levitt (2003) and Sader et al. (2002) detailed how the monitoring program created by NEFF to cover the Pingree WFCEs combines traditional ground-level monitoring, aerial photography, and satellite imagery. NEFF’s monitoring program is a hierarchical, three level monitoring program: level 1 uses satellite imagery, level 2 uses aerial photography to monitor priority sites determined by changes detected at level 1, and level 3 involves ground monitoring of sites identified by aerial photographs that may need more detailed measurement or observation (Levitt 2003; Sader et al. 2002; Sader and Reed 2003). Instead of monitoring and enforcing the landowner’s forest management plan, as many WFCEs monitoring programs do, NEFF’s monitoring program seeks to evaluate long-term results of forest management in order to promote those practices that are sustainable (Lind 2001a). Aside from research on the Pingree easement, little research has focused on whether a combination of monitoring techniques is “greater than the sum of its parts.”

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As WFCEs become increasingly popular as a tool for conservation across the country, traditional monitoring programs may fail to adequately measure information relevant to the goals and purposes of easements on large acreages, creating an explicit need for new monitoring techniques for large-scale landscapes. The NEFF monitoring program is a proactive experiment attempting to determine the most effective methods to monitor large WFCEs. As it develops and is refined, Sader and Reed (2003) suggest that this monitoring system will likely become a model for monitoring landscape-scale WFCEs across the country, and may have important implications for monitoring smaller WFCEs as well.

II.8.2 Establishing a Monitoring Regime

Research indicated that several issues should be examined in designing a monitoring program: (1) identifying overall easement/conservation goals that will direct the monitoring program, (2) selecting specific parameters to be monitored, (3) considering the size of the area to be monitored, (4) recognizing organizational capacity to carry out monitoring, and (5) evaluating the relative success of monitoring efforts (Lind 1991; Lindenmayer and Franklin 2002; Noon 2003; Rod 2003).

II.8.2.a What Conservation Purposes are Being Monitored?

If, as many studies have argued, easements are drafted with stewardship goals and organizational capacities in mind, it is crucial to establish an effective monitoring regime that reflects the purposes, provisions, and restrictions in an easement (Sader et al. 2002). Although compliance monitoring for restrictions in easements is more straightforward and relatively well-understood, Noon contended that a monitoring program that also accounts for the ecological or environmental goals of an easement can be less clear and more difficult to enforce (2003). This observation is especially poignant for WFCEs, for which managers often must couple monitoring conservation purposes like forest health with monitoring restrictions on activities such as timber management.

Studies on monitoring ecological resources have shown that the development of a monitoring regime should begin with a model or design of the ecological system, process,

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or area of interest (Salafsky and Margoluis 1999; Noon 2003). Several guides for monitoring and evaluating conservation projects indicate that the process of defining the system and making project purposes explicit is of utmost importance (Ericho et al. 1996; The Nature Conservancy 2000; Ecosystem Management Initiative 2003). Some examples of ecological and environmental purposes found in WFCEs include biodiversity, forest health, and wildlife habitat. Through such a model, Salafsky and Margoluis explained that managers establish a conservation target condition, identify the pressures and threats to the conservation target, and determine the responses or activities that can be used to mitigate threats to the target condition (1999). Without such efforts, managers will often find themselves unable to measure the success of their conservation projects.

Salafsky and Margoluis discussed the lack of methods available for measuring conservation success (1999). In an effort to fill this void, they created Threat Reduction Assessment (TRA) to measure the outcomes of conservation projects (Salafsky and Margoluis 1999). The Nature Conservancy (2000) has developed its own model for site conservation, called the “Five-S” Framework (systems, stresses, sources, strategies, and success). Similar to the approach of Salafsky and Margoluis (1999), the “Five-S” Framework attempts to abate the stresses or threats to the target condition. In an effort to promote the evaluation of conservation projects as a means of improving the efficiency and effectiveness of conservation efforts across the country, the Ecosystem Management Initiative at University of Michigan has developed a comprehensive evaluation guide to help conservation project managers through the process of designing an approach to evaluate their own conservation projects (Ecosystem Management Initiative 2003). Without effective evaluation methods, organizations that hold and monitor WFCEs will not be able to discern whether the monitoring programs implemented are truly measuring information relating to easement purposes.

II.8.2.b What Parameters and Indicators Should Be Monitored?

Authorities agree that the second step in creating a monitoring system is the selection of parameters or indicators to be monitored (Lindenmayer and Franklin 2002; Carignan and Villard 2002; Noss 1990). In the face of finite resources, easement holders should place

Chapter II – Literature Review 42 particular emphasis upon selecting parameters that accurately reflect the degree to which the conservation purposes are being attained (Carignan and Villard 2002). Lindenmayer and Franklin observed that the reverse process often takes place: limits on organizational capacity and resources often dictate which parameters are selected (2002).

Considering that organizational capacity and available resources impose limits on the selection of parameters, Salafsky and Margoluis (1999) explained that conservation organizations must choose parameters that are the most cost-effective. This is essentially the difference between what one wants to know and what one needs to know about the conservation target. Lindemayer and Franklin (2002) used forest structure to illustrate this point: strong ecological linkages between forest structure, plants, animals, and ecosystem processes in forest ecosystems make selection of forest structure as a parameter a low cost, yet effective, alternative to measuring the condition of multiple species. Based on the well-established ecological connections in forest ecosystems, other possible parameters for measurement of forest ecosystem health might include dead standing and fallen woody debris, forest canopy cover, nutrient levels in water bodies, etc. (Lindenmayer and Franklin 2002). The strategic selection of parameters is a crucial link in a monitoring regime since well chosen parameters allow WFCE monitoring staff to easily determine whether an easement’s purposes are being met.

II.8.2.c How Large is the Property?

Monitoring experts concluded that the size of the property protected by an easement significantly influences the character of a monitoring regime (Levitt 2003; Lind 1991; Sader and Reed 2003). For example, large tracts are often difficult and expensive to monitor through site visits, so using remote sensing techniques, such as satellite imagery, to monitor these areas is typically more appropriate. However, since fewer resources are necessary to conduct site visits on small tracts, this technique is often better suited for monitoring small parcels than remote sensing methods.

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II.8.2.d What is the Organization’s Capacity to Monitor?

Several studies have documented how limits on organizational capacity hinder monitoring (Lindenmayer and Franklin 2002; Salafsky and Margoluis 1999; Ecosystem Management Initiative 2003). Since many organizations have limited financial resources, cost is a very real issue in selecting a monitoring program. Given finite resources, an organization could include more parameters in the monitoring regime for a smaller tract than a larger tract. Funding for monitoring is often not a high priority as many organizations and government agencies and corporations have annual budgets, which make appropriating funding for long-term monitoring difficult (Lindenmayer and Franklin 2002).

II.8.2.e How is Monitoring Being Evaluated?

Monitoring information not only must be collected, but also needs to be compared and interpreted in order to be useful in evaluating a project’s success, and ultimately, to the decision-making process. Recent research highlighted that the importance of evaluation to a monitoring regime is matched by its difficulty (Lindenmayer and Franklin 2002; Ecosystem Management Initiative 2003). These studies indicated conservation organizations tend to be project-oriented: the majority of resources are usually devoted to project development, leaving assessment of the success of current and past projects to fall through the cracks. To overcome these challenges, several guides have been produced to advocate the importance of evaluation and to demonstrate how an evaluation plan can be created (The Nature Conservancy 2000; Ecosystem Management Initiative 2003; Saterson et al. 1996).

While many organizations overlook the evaluation process, other organizations have found reporting successes to decision-makers and the general public useful in order to influence policy changes and to garner support for their projects. Some organizations use a “report card,” to document the condition of an ecosystem or specific conservation targets (Harwell et al. 1999; Parrish et al. 2003). These studies suggest that by charting and interpreting information from monitoring programs, report cards simplify measurements of multiple parameters into meaningful categories (Harwell et al. 1999;

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Parrish et al. 2003). Report cards illustrate a project’s progress towards conservation purposes, can be easily interpreted by the public and other interested parties, and can serve as an added incentive for organizations to engage in the evaluation process (Harwell et al. 1999). Producing these performance results may also influence land owners to be more diligent in complying with easement restrictions and provisions.

II.8.3 The Cost of Monitoring

WFCEs carry a significant financial responsibility. Besides the upfront cost of purchasing an easement, the holder has the financial obligation of perpetual stewardship for the property. Stewardship was found to be the least celebrated aspect of WFCEs and hence the most challenging to fund, despite being highly valued as the “policing” mechanism that protects biodiversity and retains public confidence in WFCEs as a conservation tool. Lind subdivided monitoring expenses into three categories: collection of baseline data, monitoring, and enforcement of easement restriction violations (1991). Despite the diversity of landscapes, easements, and organizational norms and capacities, certain expenses are either universal or can be adjusted to fit the nuances of specific organizations. A sample worksheet can be found in Appendix G (Ratley-Beach 2003).

II.8.4 Monitoring Endowment

With myriad stewardship responsibilities on other easements and preserves, land trusts should create a stewardship fund independent of other financial endowments (Ratley- Beach 2003). For example, NEFF, which holds the Pingree easement in Maine, arranged for a portion of the purchase price to be placed directly into a monitoring fund (Levitt 2003). As WFCEs become mainstream and the necessity of large-scale monitoring more immediate, land trusts will have to make strong commitments to financing monitoring. A separate fund for monitoring ensures that adequate monitoring and enforcement continues over time and through financial hardship. The purpose of a monitoring endowment is to provide a regular and steady income source to finance a monitoring regime (Ratley-Beach 2003). Ratley Beach’s model monitoring endowment has three primary investment goals: (1) to provide income to support

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monitoring activities, (2) to grow principal, keeping pace with inflation and providing income to support future activities, and (3) to generate a steady pay-out stream in order to deliver a consistent, high quality monitoring program (2003). The endowment should grow with each easement that an easement holder accepts (Lind 1991). Through monitoring calculation worksheets, investment managers can determine the proper amount necessary to fund monitoring in perpetuity (Ratley-Beach 2003).

Easement holders can secure money for the monitoring endowment from the grantor. While this can be a sensitive request, Lind (1991) noted that landowners typically place easements on their properties to ensure the very attributes valued by the grantee. Thus, Lind (1991) suggested that negotiators repeatedly remind the landowner that the fund is consistent with the organization and landowner’s shared goal of sustaining the environmental, social, and economic quality of the property. A representative of The Brandywine Conservancy, a regional land trust in Pennsylvania, observed that “most landowners willingly provide an endowment once they understand the importance of the land trust being financially prepared to uphold the terms of their easement” (Lind 1991, 67). A monitoring worksheet helps by explicitly showing where the money will be allocated and how a donation to a monitoring fund will better prepare a grantee to uphold the terms of the easement. The donation can cover a portion or the entirety of monitoring costs for an easement. Usually annual monitoring costs are used to determine the donations size; although, the cost of legal enforcement and baseline documentation can also be used to estimate the necessary donation size (Lewis 2001). The Vermont Land Trust, for example, requests an additional $600 from donors to cover baseline documentation costs (Lind 1991). A simple method to calculate the monitoring fund contribution is to use a flat amount, which is based on the average costs per easement (Lind 1991). Other recommended methods include determining: (1) an amount based on acreage and complexity of restrictions, (2) an amount based on specific projected costs, (3) an amount based on the percentage of land’s value transferred by the easement, or (4) an amount based on a property owner’s ability to contribute (Lind 1991).

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If no donation from a grantor is forthcoming, grantees can solicit assistance from community members, foundations, and even government stewardship and/or conservation programs. Fundraising specifically for monitoring constitutes a considerable challenge; collecting tax-deductible donations for the monitoring fund is the preferred way to garner funds. Donations can either accompany the easement itself or be provided in segments over time. A more indirect approach, yet equally effective, is a non-monetary asset, such as real estate, which the grantor can sell or trade to use toward other projects. After exhausting these avenues, grantees can resort to internal transfers, moving unspecified monies from an existing fund to the monitoring fund.

Once the monitoring fund is established, easement holders must set investment and withdrawal policies. Half of the land trusts surveyed in an LTA research project, for example, used a written policy to manage stewardship funds (Lind 1991). Since these funds are available exclusively for monitoring, policies must be in place to safeguard against impropriety and endowment collapse (Ratley-Beach 2003).

II.8.5 WFCEs and Forest Certification

Third party certification of environmentally friendly or sustainable forest products is a growing trend in both America’s private forests in general and on WFCEs specifically (Newsom 2002). Forest certification effectively protects forests through the promotion of environmentally responsible forest management. Qualified independent certifiers (or auditors) evaluate as well as manage forests according to international standards. Wood or wood products from certified forests are then labeled so that consumers can identify them.

Two major forest certification programs exist: the Forest Stewardship Council and the Sustainable Forestry Initiative Program. Since its inception in 1993, the Forest Stewardship Council has certified 9.4 million acres in the U.S. (Newsom 2002). The FSC ensures the integrity of the certification process by evaluating and accrediting qualified certifiers, and continuing to monitor them regularly after accreditation has been granted. FSC is comprised of environmental groups, the timber trade, forestry

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professionals, indigenous peoples and community forestry organizations and certifiers (Washburn and Miller 2003). The Sustainable Forestry Initiative, established in 1995 as a voluntary code of conduct for members of the American Forest and Paper Association, has certified 136 million acres in North America (Sustainable Forestry Initiative 2004).

As WFCEs become both larger and more prevalent, it will be critical to develop monitoring regimes that simultaneously are suited to large scale tracts of land and do not over-tax the organizational capacity of the easement holders (Newsom 2002). A link between WFCEs and forest certification offers a potential opportunity. Forest certification in combination with a WFCE could provide both a streamlined and a cost- effective integrated approach to the responsible management of forested land.

Table II.1 Common elements of WFCEs and forest certification (Source: Newsom 2002).

Common Elements of WFCEs & Forest Certification Research into forest certification is in the Compliance with a set of standards preliminary stages. The incorporation of Baseline documentation / assessment Forest management plan forest certification into WFCEs is Scheduled auditing / monitoring plausible from the standpoint that the two Balance of social, economic, & ecological stability processes have several similarities (see Long-term vision of the forested tract of land Conservation ethic / sustainable forest interest by Table II.1). Combining the two processes landowner would remove any redundancy and allow Involvement / input of professional forester resources to be directed elsewhere. Stakeholder consultation Essentially, this shared approach maximizes the benefits of each party while minimizing cost and the planning and implementation efforts that strain land trusts’ operational functionality. An article on third party certification on WFCEs concluded that third party certification should not replace easement restrictions and forest management plans (Newsom 2002). Nevertheless, certification could ease monitoring and address a number of current dilemmas, including increasing difficulty in monitoring very large tracts of forested land, providing clarification in defining the term “sustainable forestry,” and offering greater public credibility to WFCEs (Newsom 2002).

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Land trusts, and other holders of large WFCEs, could benefit from partnering with an FSC-accredited certifier that has developed an assessment and auditing system for large forested tracts. With an increasing number of WFCEs funded by public tax dollars (e.g. the Forest Legacy Program), a growing emphasis on corporate responsibility, and consumer demands for environmental and social accountability, certification may provide credibility for WFCEs. Monitoring could ultimately be paid for by the landowner, which Lindenmayer and Franklin (2002) proposed would allay the financial and organizational resource challenges which land trusts often confront. This added cost to the landowner would provide benefits, such as the opportunity to access a currently select, but growing international market. A rise in consumer demand for certified forest products could drive forest managers to adopt more environmentally sound practices and for retailers and manufacturers to obtain wood products from certified forests (Newsom 2002).

Forest certification of WFCEs could be structured in a number of ways. The optimal approach for future WFCEs, which has already been drafted into an easement held by the North Carolina Land Trust, would be to draft easements so that achieving forest certification would mean de facto that certain requirements of the WFCE are fulfilled (Newsom 2002). Generally, certification could be mandated, or presented as an option, in an easement whereby certification would automatically signify compliance with the goals and restrictions of an easement. Thus, a grantor’s operations would be both legally sound and certified while the grantee would be free from the responsibility of monitoring. This would enable land trusts to direct resources to activities such as land transactions, site restorations, and negotiations.

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II.8.6 The Pingree Easement: A Model in Large-Scale Monitoring

The NEFF holds and monitors the Pingree easement, the largest conservation easement in the United States. Monitoring the 762,192 acres of forest land constituted a considerable monitoring challenge and resulted in the creation of a new approach to monitoring. A number of published works discussed the Pingree easement as the model for monitoring large forested areas (Levitt 2003; Reed et al. 2002). Most notably, on April 3, 2000, the Yale Forest Forum (YFF) hosted a public forum and workshop entitled, “The Fine Print: Exploring the Complexities of Implementing the Country’s Largest Conservation Easement on the Pingree Forest.” Workshop participants discussed several characteristics that had, as of 2000, made the easement successful to date: like-minded grantor and grantee, the establishment of an endowment, and partnerships that maximize resources to best monitor the land (Binko 2001). Pingree Associates, the easement grantor, had a long history of stewardship and sustainable forestry practices in the state of Maine. In 1994, the FSC recognized this commitment and green-certified the Pingree lands (Binko 2001). After recertification, the Pingree lands received certification from the Sustainable Forestry Initiative in April 2001 (Binko 2001). The Pingree family commitment to protecting the land provided the underpinnings from which NEFF could develop an effective WFCE (Binko 2001).

NEFF displayed extraordinary foresight in designing the monitoring strategy (Levitt 2003). For example, NEFF envisioned a monitoring endowment for monitoring and eventually raised $1,000,000 for a monitoring and enforcement endowment. This fund supports the fundraising, legal, documentation, and other costs associated with completion of the Pingree easement. Assuming a 5% rate of return, NEFF relies on approximately $50,000 per year for monitoring the easement (Levitt 2003). This commitment to monitoring provided an important level of comfort for the donors, ensuring the capability of NEFF to monitor and, if necessary, enforce the easement provisions (Reed 2003).

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Despite the substantial amount of funding, NEFF does not have the organizational capacity to handle all aspects of the Pingree easement independently. The monitoring fund, for example, is managed by the Maine Community Foundation (Binko 2001). In addition, NEFF contracts assistance with monitoring from both the Lyme Timber Company and the Maine Image Analysis Laboratory, directed by Dr. Sader at the University of Maine (Binko 2001).

As Reed and Sader explained during their workshop at the 2003 LTA Rally, NEFF’s monitoring regime for Pingree started with compilation of baseline documentation even before the easement was completed. Once the conditions of the property were recorded, NEFF moved to review and monitor the forest management plan. NEFF utilized a three level hierarchical approach developed from the property’s baseline documentation. The three levels, discussed by both Reed et al. (2002) and Levitt (2003), included satellite imagery, aerial photography, and site visits: • Level 1: Level 1 consisted of change detection. Medium spatial resolution was used to detect human and natural disturbances causing a change in canopy of greater then one acre in size. GIS and GPS data was used through a Landsat Thematic Mapper (TM), which is a coarse filter monitoring system that allows the entire property to be monitored frequently, expediently, and at relative low cost per acre. For the Pingree property, Landsat-7 TM imagery, with approximately 13,225 square miles of coverage, was purchased for $600 per scene (Reed et al. 2002). Dr. Sader’s lab used a simple algorithm to determine canopy disturbance from this satellite imagery. Satellite data was collected annually in late spring to early summer. • Level 2: If a disturbance was detected or if a site was too small for Level 1 analysis, the monitors moved on to Level 2. Level 2 involved high-resolution aerial photographs. Level 2 followed Level 1 because high resolution aerial photos were expensive and time-consuming to obtain. Photo collection could take place when events triggering a disturbance occur, annually, or over longer time periods for long-term monitoring of diversity and structure indicators (Reed et al. 2002). • Level 3: Level 3 was ground monitoring or field measurement. Ground monitoring was the most expensive method, and was only conducted on the highest

Chapter II – Literature Review 51 priority sites or those not possible to monitor at Levels 1 and 2. Field visits for a landscape-scale easement could be complicated. If a new disturbance was not detected, check sites or long-term monitoring sites were used. Scheduling for Level 3 monitoring occurred after Levels 1 and 2 were complete in case of discovery of a new high priority site.

NEFF monitors for the provisions detailed in the purpose and restriction sections of the easement (Reed et al. 2002). NEFF’s monitoring regime and protocol for specific attributes remains in development as new methods are researched and studied. NEFF’s monitoring efforts are supplemented by the Maine Forest Service’s legally mandated review of annual self-reports from landowners (Reed et al. 2002). However, no assistance or solution is currently available for monitoring long-term ecosystem health until new methods are developed.

II.9 Issues Affecting the Use of WFCEs

II.9.1 Ownership Patterns in America’s Private Forests

Depending on the source and categorization of land use estimates of private forestland differ from nearly 488 million acres of forest held by nonfederal owners (National Research Council 1998) to 430 million acres of forest, nearly two thirds of the country’s total forest land, held by private owners (Best and Wayburn 2001). According to National Research Council statistics, 40% of this total can be found in the South Central and Southeastern regions of the United States, while 32% can be found in the Northeast. Twenty percent can be found in the Pacific Northwest and Southwest (National Research Council 1998). This acreage represents about 58% of America’s total forestland, defined by the USDA Forest Service as land that is at least 10% covered by trees, including land that formerly had such tree cover and is expected to regenerate, naturally or artificially. The USDA Economic Research Service and Natural Resource Conservation Service both define forestland in terms of land use, which often leads to lower estimates (National Research Council 1998).

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According to a 1994 study conducted for the Forest Service, there were more than 9.9 million private forest owners who controlled 393 million acres of forestland (Birch 1996). Industrial owners, while only numbering 13,300, controlled approximately 21% of this land. Individuals, comprised 68.32% of private owners, and farmers, who represented 24.55% of the owners, controlled nearly 35% and 28.3% of the 393 million acres respectively (Birch 1996).

Even though the number of owners holding parcels of 1,000 acres or more only comprises 0.27% of private forestland owners in the country, they control nearly 40% of America’s total private forestland acreage (Best and Wayburn 2001). In the Northeast, just 2,806 owners, or 0.15% of the total for that region, held parcels of 1,000 acres or more but they controlled nearly 30% of the total forestland (Irland 1999). On the Pacific Coast, only 1% of forest owners that held parcels of 1,000 acres or more control 67% of the total forestland area (For further detail, please refer to Table II.2). The concentration of vast tracts of lands under relatively few landowners provides an opportunity for land trusts and government agencies to obtain landscape scale WFCEs.

Table II.2 Forestland Ownership in Parcels of 1,000 Acres and Greater, By Region (Source: Best and Wayburn, 2001; Irland, 1999; Birch, 1996). % OF TOTAL % OF TOTAL REGION # OWNERS OWNERS # OF ACRES ACREAGE

Northeast 2,806 0.1 17,261,000 29.8 Southeast 7,700 0.3 30,132,000 39.0 North Central 2,800 1.0 19,339,000 71.0 South Central 8,100 0.3 43,425,000 39.0 Great Plains 100 0.1 155,000 5.0 Intermountain 2,800 1.0 19,339,000 71.0 Pacific Coast 3,300 0.5 30,614,000 67.0

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II.9.1.a Industrial Owners

Best and Wayburn’s statistics show that timber industry owners controlled 67.6 million acres nationally, or 9% of total U.S. forestland (2001). Between 1952 and 1992, the forest products industry acquired approximately 11.5 million acres from smaller non- industrial private owners (Best and Wayburn 2001). The ratio of timber industry owners to all other owners was greatest in those regions of the country where soils and other ecological factors allow for profitable and intensively managed stands, namely the Pacific Northwest, Southeast, and South Central United States. In these three areas, approximately 19% of all forestlands were industry-owned (Best and Wayburn 2001). In parts of the northeast industry ownership was also high. For instance, the timber industry owned 46% of all forestland in the State of Maine, where industry ownership increased by 10.3% between 1952 and 1997 (Irland 1999). Generally, these owners attempt to maximize the yield per acre (Best and Wayburn 2001). This was accomplished through intensive management and the buying and selling of forestland to maximize ownership of highly productive lands (Best and Wayburn 2001).

Table II.3 Timber Industry Ownership, By Region (Source: Best and Wayburn 2001; Birch 1996). % OF TOTAL % OF TOTAL REGION # OWNERS # OF ACRES OWNERS ACREAGE

Northeast 7,700 0.3 11,670,000 16.0 Southeast 1,300 0.1 15,821,000 21.0 North Central 1,000 0.4 4,791,000 8.0 South Central 2,100 0.1 5,443,000 6.0 Great Plains 25 0.0 36,000 1.0 Intermountain 125 0.1 9,424,000 34.0 Pacific Coast 1,000 0.2 14,529,000 39.0

II.9.1.b Institutional Owners

In 1974 Congress passed the Employee Retirement Income Security Act (ERISA). This act encouraged institutional investors to diversify their portfolios. As a result of this legislation and a depressed market for forestland, timberland investment management organizations (TIMOs) emerged to organize and manage partnerships of institutional

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investors. Institutional owners, including pension funds, foundations, university endowments, and TIMOs control approximately 7 million acres (Best and Wayburn 2001). Unlike industrial owners, institutional owners do not own mills, processing facilities, or other infrastructure. Like many smaller owners, they decide how much and when to harvest based on market trends and are driven by generating a desirable rate of return from timber harvesting. This growing ownership class is characterized by a long- term view on investment and risk-averse behavior (Best and Wayburn 2001). TIMOs may be interested in entering into WFCEs to obtain bulk cash payments and a variety of tax benefits (Hall 2004).

Typically, institutional owners will move into or out of specific regions and forest types depending on market conditions and changing financial models. While still only holding a relatively small percentage of privately owned forestland, it is clear that institutional owners have made a long-term commitment to owning and managing forests (Best and Wayburn 2001).

II.9.1.c Non-Industrial Private Forestland Owners (NIPFs)

The overwhelming majority, or 94.4%, of non-industrial private forestland owners (NIPFs) owned fewer than 100 acres (Birch 1996; Best and Wayburn 2001). These owners controlled 70% of forestland in the South and 67% in the North Central and Northeastern regions of the country (Best and Wayburn 2001). As this population ages, they are confronted with intergenerational transfer within the family or the sale of their land to developers or industry. Through these transfers and sales, NIPF’s lands will be increasingly important as part of forestland conservation on a national level and regionally (Best and Wayburn 2001).

II.9.2 Forest Fragmentation

Previous studies revealed that between 1978 and 1994 there was a 161.6% increase in the number of owners of forested parcels ranging from 10 to 99 acres in size (Birch 1996). Between 1978 and 1994 the acreage of forested parcels between 10 and 99 acres grew by 39,609,000 acres, or 130.2% (Birch 1996). During that same time period the number of

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owners of parcels 100 acres and greater decreased by 14% (Best and Wayburn 2001; Birch 1996). This decrease corresponded to a loss of 29,394,000 acres of forestland in parcels greater than 100 acres (Best and Wayburn 2001). Despite differences between the two datasets analyzed in the study (the 1994 dataset included the addition of some 14 million acres of forestland), larger forested parcels clearly are being fragmented into smaller parcels (Best and Wayburn 2001). This trend has potential ramifications on both the ecological integrity of forested landscapes and on the opportunities to protect those landscapes. Hypothetically, WFCEs could limit forest fragmentation by virtue of restrictions on the subdivision of land. Since restrictions “run with the land,” even if the land is subdivided the new parcels are encumbered with the same restrictions. Thus, while the land may become fragmented, the negative effects of fragmentation might be mitigated. To date no research has been done on either of these topics.

II.9.3 Aging Landowners

The most recent statistics available show that in 1994 there were 2.5 million individual forestland owners aged 65 or older, controlling approximately 92.6 million acres. There were an additional two million owners, controlling 54 million acres, between 55 and 64 years of age (Birch 1996). As these owners retire and pass away, the decisions they make about the future use of their forestlands is critical to the success and effectiveness of forestland conservation schemes, including working forest conservation easements.

III.9.4 Problems with Future Landowners

One of the greatest selling points of conservation easements is that conservation easements may exist in perpetuity. However, the durability of conservation easements is questionable (Cheever 1996; Tapick 2002; Mahoney 2002). While some grantors of conservation easements have attempted to terminate the easements, grantors usually respect the terms of the easement because they negotiated the restrictions to reflect their desired uses of the land (Cheever 1996). In other words they have received a “benefit” from knowing that the land will be protected. As conservation easements are relatively new devices, most current owners of encumbered lands are the grantors of the

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conservation easement. However, according to many sources, the ownership of burdened land will soon shift (Best and Wayburn 2001; Birch 1996; Irland 1999). Therefore, a wave of challenges to the validity of conservation easements may soon begin.

Why will these challenges take place? First, future owners of the encumbered land will not have received the psychological “benefit” of knowing the land will be protected because of their actions (Cheever 1996). Moreover, future owners may desire fundamentally different uses of the land and thus attempt to challenge the validity of conservation easements (Cheever 1996). While the donor received the benefit of a reduction in property tax, income tax, and the estate tax, the future landowner will only benefit from the reduction in property tax (although presumably a lower price was paid for the encumbered land) (Tapick 2002).

The argument used in a successful challenge to a conservation easement can be applied by other dissatisfied landowners, regardless of their status as a corporation or a living person, in an attempt to break the conservation easement on their land. Therefore, the termination or limitation of a conservation easement is a precedent that may cause a “domino effect” and have negative ramifications on all conservation easements. To date, no studies have analyzed the impact of future landowners on WFCEs. However, the concerns addressed above are as applicable to WFCEs as to ordinary conservation easements.

II.9.5 Lack of Land Trust Financial Resources

Land trusts that lack financial resources may be in danger of losing conservation easements and may even put the conservation easements of other land trusts at risk. Earmarking funds for monitoring conservation easements is not as enticing as acquiring additional lands and conservation easements for land trust personnel; likewise, donors are less prone to dedicate donations towards monitoring easements instead of new acquisitions (Hall 2004). Thus, if land trusts place a higher priority on these activities than monitoring, sufficient financial resources may not remain to carry out an adequate monitoring program. Today, land trust personnel are placing increasing emphasis on

Chapter II – Literature Review 57 monitoring easements and the creation of funds to pay for monitoring is often part of the negotiation process (Hall 2004).

The obvious result of not having a monitoring program is that either the land owner or third parties may violate the conservation easement with impunity. Simply put, the violation may never be discovered or may be discovered too late to be pursued in court. A statute of limitation exists for property and contract claims under which easement enforcement actions would be brought. While a party may have engaged in behavior that negatively impacted the legal rights of another party, the right to be heard in court does not extend forever. Most states limit the duration of claim to a few years (Cheever 1996). If a land trust does not discover a violation before the statute of limitations expires no legal remedy exists. The large size of most WFCEs would magnify this issue. Similarly, if the land trust is unable to enter into litigation due to a lack of resources before the statue of limitations expires, then no court action may take place.

Inadequate funding impacts the ability of land trusts to engage in successful litigation to enforce conservation easements (Cheever 1996). Since WFCEs are often held by large corporations, a large discrepancy may exist between the resources available to a land trust and a corporation for litigation. Not only may a single conservation easement be eliminated, but the case may become a legal precedent creating a “domino effect” where numerous other easements are destroyed by following the same rationale.

II.10 Enforcement

II.10.1 Monitoring for Enforcement

Successful enforcement of conservation easements is impossible without adequate monitoring of the purposes and restrictions presented in the document. Monitoring WFCEs may become even more complicated and crucial than monitoring for a typical conservation easement because the land is being used simultaneously for forestry and forest preservation. Therefore, in addition to making sure that restrictions on

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development are followed, monitoring programs for WFCEs must also account for ecosystem health and forest management considerations.

II.10.2 Enforcement Provisions Inside of WFCEs

Enforcement is usually addressed in the WFCE document itself, although the state enabling statute impacts the content of the document. Some state statutes address who may enforce the provisions of the easement and thereby influence the content of the easements. The Uniform Conservation Easement Act, and many of the state statutes modeled after it, allows third-party enforcement; in other words, the grantor and grantee may grant another party the right to enforce the terms of the easement. Yet frequently the conservation easement is written to prevent third-party enforcement or to limit the enforcement of the easement to the signatory parties and specified third parties (Tapick 2002). Without the option of third-party enforcement, novel methods of monitoring and enforcement like third party certification may not succeed.

II.10.3 Interpretation of Easements in Court

II.10.3.a Enforceability of WFCEs by Analogy to Conservation Easements

Since large-scale WFCEs are relatively new there is an absence of legal literature and court decisions focusing on WFCEs. However, WFCEs are created and subsequently are enforceable under the state laws that allow for conservation easements; therefore, the problems of enforcing WFCEs should mirror those of the greater body of conservation easements. In turn, literature on the enforceability of conservation easements draws upon the related subjects of common law easements and other legal restrictions upon land use (e.g. covenants).

II.10.3.b Ambiguous Language

Often the terms of an easement are open to multiple interpretations. In interpreting the terms of conservation easements the courts have taken three different approaches: determining the intent of the parties, looking to relevant local statutes and codes, and examining the purpose of the enabling statute.

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A common method for courts to interpret ambiguities is to determine the intent of the parties and evaluate the language with this intent in mind. Two main techniques exist for determining the intent of the parties: the court may examine the entire document or alternatively, the court may look only to the text of the document immediately surrounding the ambiguous language. In Madden v. TNC (1992), the court chose to examine the entire document.

On occasion the court does not follow this general principle. For example in Gallaway v. Idaho Forest Industry, Inc. (1997), the protected land parcel had been sold multiple times before the easement was challenged. Both the original grantor and grantee testified that their intent had been to protect the land. However, the court chose to ignore this testimony, instead claiming that the restrictions had been meant to protect the land if the original sale fell through and that the land was more valuable unrestricted since timber could be harvested.

In situations where terms are not defined in the easement, courts have looked towards local building codes for guidance. In Southbury Land Trust, Inc. v. Andricovich (2000), the landowner wanted to build a pool. The decision turned on whether a pool fit into the definition of a structure under the easement. Instead of looking to the intent of the parties, the trial court looked to the local city code, which stated that a pool was a structure, and subsequently held the pool was a building. On appeal, the appellate court looked, instead, to the purpose of the easement as a guide to interpret the restrictions and reversed the lower courts opinion.

In Racine v. U.S. (1988), the terms of a scenic conservation easement limiting the property owner to one residence and dude ranching were at issue. The land owner wanted to expand the dude ranching operation and construct additional buildings. The court held that additional buildings consistent with dude ranching were permissible; if the land trust had wished to limit the construction to only a single building, the residence, then such a restriction should have been specifically negotiated and made explicit in the document.

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While none of these cases involved a WFCE, WFCEs can also suffer from ambiguity. Many forestry goals and terms have multiple definitions. How will a court resolve a suit based on a failure to preserve “forest diversity?” Judges, while skilled in the law, are not foresters, and even defining “forest diversity” may be beyond them. In fact, the easement holder and landowner may have different definitions of what “forest diversity” means. Taken a step further, what happens when the land is sold to a new land owner and potentially a third view of “forest diversity” enters the picture?

II.10.3.c Permissible Levels of Restrictions

Legal scholars have attempted to consolidate and clarify many bodies of law. One attempt is the creation of “Restatements” of areas of law. The views put forth in “Restatements” are not automatically binding upon courts, although “Restatements” are persuasive authority. However, courts are free to adopt the principles of the “Restatement” as the binding law of the jurisdiction. “Reasonable” restraints upon the land are allowed under the Restatement (Second) of Property (Servitudes) (Mahoney 2002). This “reasonable” test involves balancing the benefits of the restrictions against the negative impact on the landowner (Mahoney 2002).

That said, a dramatic change in method of interpreting easement terms has been recommended in the Restatement (Third) of Property (Servitudes). The new restatement is much more deferential to the easement holder, maintaining that a restriction is valid if there is a “rational justification” for the restriction. It is unclear yet whether this new distinction will be adopted by the courts (Cheever 1996), but undoubtedly WFCE holders would benefit greatly.

II.10.4 Enforceability of FMPs and BMPs

What is the legal enforceability of FMPs and BMPs mentioned in WFCEs? To date, there appear to be no cases on this subject. WFCEs often require landowners to develop a FMP and enumerate topics that should be incorporated. Can the land trust engage in successful litigation over violations of the FMP? A potential loophole seems to exist since easement documents typically only require the creation of an FMP, which in turn

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provides standards for certain activities. The landowner could argue that the legal requirements of the conservation easement have been achieved upon completion of the FMP and that adherence to the FMP is not strictly required by the document. This creates an added level of organization and perhaps another level of confusion and ambiguity.

Many WFCEs stipulate that forestry activities must follow a BMP or BMPs promulgated by state or federal organizations. This appears to be done is several different ways. Certain easements dictate a BMP by name and year; other easements dictate a BMP by name and year and state that any future versions will take the place of the original; another set of easements refer generically to any BMPs created by state agencies. This final set is very open and may well be stated as such due to the fact that the state agencies have not enacted any BMPs. In other words the Land Trust is trying to tie into documents that have not yet been created.

These forms of easement construction save land trusts time and money, and allow them to draw upon the expertise of these organizations. Since BMPs are modified periodically, in theory to accommodate scientific advances, incorporating BMPs into a conservation easement creates a degree of flexibility that creates cutting edge forestry management. However this final point may only be applicable to easements in which the document specifically states that future versions of the BMP are applicable.

II.11 Potential “Affirmative Defenses” for Landowners

Landowners have several weapons to counter the restrictions of conservation easements. “Affirmative defenses” are not used to attack the legitimacy of the easement, instead “affirmative defenses” are based in equity and amount to a claim that enforcement of the easement would place an unfair burden on the landowner. The counterarguments that the landowner either entered into the conservation easement or knew of the conservation easement at the time of purchase and paid a substantially reduced price are strong, but do not guarantee that the conservation easement holder will prevail. Thus, even a well drafted WFCE may fall prey to these attacks.

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II.11.1 Dead-hand Control

Academics point to the longstanding policy against “dead hand” control as a potential impediment for conservation easements. In essence, courts disfavor allowing past generations to place restrictions on the land, meaning that land should be freely alienable (Collins 1996). The underlying reason is that decisions made in the past, which bind current and future owners, may retard the desired outcome of maximizing society’s wealth (Tapick 2002). Previous owners are not able to anticipate all future conditions. Therefore, a court will decide as a matter of equity that the conservation easement is inherently unfair and strike down the easement as unenforceable, regardless of whether the easement is well drafted and unambiguous. A counter-argument to the policy against dead-hand control is that without protection large scale ecosystem destruction will occur and have an adverse impact upon future generations (McLaughlin 2002).

The impact of the dead hand policy on WFCEs has not been examined. As discussed earlier, WFCEs are becoming increasingly flexible by referencing BMPs and FMPs that are periodically changed. This flexibility might insulate WFCEs from the equitable power of the court to terminate an easement because of the fear of dead-hand control.

II.11.2 Equitable Doctrine of “Changed Conditions”

Historically, the doctrine of changed conditions was not frequently applied to common law easements; instead it was applied to equitable servitudes and real covenants (Morissette 2001). Despite sharing the word “easement,” conservation easements are not automatically considered most similar to common law easements (Morissette 2001). In fact, some scholars have implied that the use of “easement” in conservation easements is a misnomer (Morissette 2001; Tapick 2002). Thus, there is some uncertainty as to whether this doctrine can apply to conservation easements (Tapick 2002). The rationale behind this doctrine is that an agreement cannot be analyzed without considering the background conditions extant at the time the agreement came into existence. Should background conditions change sufficiently, so that the enforcement of the easement is no

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longer sensible or if the purpose of the easement can no longer be attained, then a court may terminate the easement (Mahoney 2002; Tapick 2002). The burden of proof is on the landowner (Tapick 2002).

Some scholarly research has questioned the overall existence of conservation easements based on this point (Mahoney 2002). One scholar suggests that the popularity of conservation easements is at its zenith. Conservation easements are relatively new and the properties are being held by the grantors. Since little time has elapsed since the original donation, there has been little time for the values of society to shift and advances in science to occur (Cheever 1996). The downside of conservation easements will become evident as society’s values change, its knowledge increases, and the ownership of the protected land shifts to owners with different goals (Mahoney 2002). According to this rationale, at best the present generation is trying to act in the benefit of future generations, yet the present generation is creating obstacles and restrictions that the later generations will need to remove. At worst the present generation, acting with an inflated sense of purpose and ego, is attempting to impose its values upon future generations.

Indeed, there is a sense of irony in the idea of protecting land in perpetuity when the scientific community is coming to believe that Nature is always in a state of flux (Mahoney 2002). Over the course of time flora and fauna will change. Thus, while a WFCE may protect prime forestland today, in fifty years the courts may remove the forestry restrictions through no fault of the easement holder.

II.11.3 Attacking the Purpose of the Conservation Easement

In order to be legally enforceable a conservation easement must fulfill the conservation purposes listed in the enabling statute. A landowner interested in discrediting a conservation easement may argue that the easement is not for legitimate purposes (Cheever 1996). The best argument against legitimate purposes is that the original grantor entered into the conservation easement only to take advantage of the tax breaks.

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A landowner may attack the conservation easement by claiming that it was not created for a legitimate purpose (Cheever 1996). Needless to say, the sizeable federal tax breaks for conservation easements automatically lend some credence to this claim. This attack will take one of two approaches depending upon the language of the state enabling statute. In a state such as California that requires specific purpose requirements, the original intent will be examined. Undoubtedly in most situations strong conservation purposes also exist; however, proof may not be readily available. Presumably the original grantor and grantee will be of similar minds on the conservation value of the property and will therefore discuss the subject little, especially by official documentation; in contrast, the taxation issues may be discussed in greater detail because of their complexity. Therefore, the easement may be considered as never having existed in the first place (Cheever 1996). WFCEs have not been examined on this subject. While discussions of tax benefits are probably heavily documented while WFCEs are negotiated, conservation purposes may or may not be documented.

The second approach, possible in states such as Colorado, which requires the restrictions be “appropriate” for the enumerated purposes, the argument would be different (Cheever 1996). The argument will proceed that the restrictions are no longer “appropriate” to meet the desired purposes. Given the changing nature of science this seems like a significant long term threat to conservation easements.

II.11.4 Direct Attacks Upon Land Trust’s Charitable Status

In many states, a land trust must have 501(c)(3) status to hold a conservation easement. If a land trust fails to have or maintain this status then the conservation easement may be void (Cheever 1996). Thus, faced with an enforcement action in court, a landowner may attack the land trust directly, alleging that the land trust is not qualified to hold the easement. Proper record keeping and filing is required to maintain 501(c)(3) status (Cheever 1996). The likelihood of insufficient record keeping and filings could be a large problem for smaller land trusts that depend upon volunteer staffs for labor and do not have office space.

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Similarly, even if the state does not require a 501(c)(3) organization to hold the easement, the land trust may be required to have certain organizational purposes. If any organization holding a conservation easement changes its purpose and no longer maintains the required purposes then the conservation easement may no longer qualify as such (Tapick 2002); in this case the conservation easement would be rendered a common law easement and become more susceptible to being overturned in court (Tapick 2002). In addition, if a land trust engages in self-dealing and helps members achieve a profit, then 501(c)(3) status is at risk as well.

II.12 Termination of Easements

Easements may be terminated in several ways, both intentional and unintentional. At the easement holder’s discretion, the conservation easement may be terminated by giving the written deed for the easement to the landowner (Mahoney 2002). At least twenty-nine state enabling statutes as well as the Uniform Conservation Easement Act allow for this option (Tapick 2002), yet many state statutes act to preclude this option (Mahoney 2002). For example the Colorado statue states: “A conservation easement in gross is an interest in real property freely transferable in whole or in part for the purposes stated in (this article) and transferable by any lawful method for the transfer of interests in real property in this state” (Collins 1996). The argument proceeds that the merger of the easement with the fee simple would contravene the stated purposes of conservation easements in Colorado (Collins 1996).

The Uniform Conservation Easement Act in Section 2(a) allows conservation easements to be “released, modified, terminated, or otherwise altered or affected in the same manner as other easements.” Thus state laws governing conservation easements in gross apply; however if none are applicable the UCEA section 4(2) allows assignment (Collins (1996).

II.12.1 Doctrine of Merger

In theory the doctrine of merger is simple. The landowner of property with a conservation easement cannot also hold the conservation easement. If the landowner

Chapter II – Literature Review 66 does own both then the conservation easement and fee simple are merged (Tapick 2002). The result is as if a conservation easement had never been granted in the first place. In Gallaway v. Idaho Forest Industry, Inc. (1997) the court held that even if the parties’ intent had been for the easement to run with the land, the manner of sale merged the conservation easement and the fee simple.

II.12.2 Modification, Termination, and Release

Most easements contain language allowing for the modification, termination, and release of easements. Many templates, including the UCEA template, contain relevant provisions as well. Obviously, the ability to accommodate unforeseen circumstances and changes is important for any document that is intended to exist in perpetuity. Undoubtedly, the ability to modify and terminate easements assuages the doubts of landowners and encourages them to enter into the easements.

Chapter II – Literature Review

III. OBJECTIVES AND METHODOLOGY

This section includes descriptions of the specific objectives and methods for: (1) the study sample selection, (2) the easement comparison study, and (3) the monitoring surveys.

There were four primary objectives of this study: 1) to identify important trends in the language of WFCE documents; 2) to identify the range of techniques in use for monitoring easement restrictions and purposes on WFCEs; 3) to assess the effectiveness of monitoring techniques in use on WFCEs; and 4) to determine the correlations between easement restrictions and monitoring on WFCEs.

To accomplish the comparison of WFCE language, a list of potential restrictions and purposes was created by 1) adapting model easement tables presented in Protecting the Land: Conservation Easements Past, Present, and Future (Gustanski and Squires 2000) and 2) reading a selection of easements and recording the purposes and restrictions used in each. The comparison of 82 easements to this list of model easement language provided the basis for identifying trends in the content of easements.

To accomplish the survey-related objectives of this study, surveys were administered to the monitoring staff of the organizations holding the easements selected. Each easement specific survey inquired about the monitoring used for the restrictions and purposes as outlined in the easement language.

67 68

III.1 Study Sample Selection

III.1.1 Why 1,000 Acres and Larger?

Due to the very high number of conservation easements in the United States at the time of this study, a size threshold was established to create a smaller pool of potential easements. The threshold of 1,000 acres eliminated from the sample set a large number of easements, narrowing the sample set to a manageable size.

III.1.2 How Easements were Obtained

At the time of this study, no national registry or listing of working forest easements existed. Therefore, a list was created for the purposes of this study, beginning with information on easements from TNC and the Land Trust Alliance (LTA)(Van Ryn 2003). Additional information about state-held easements was sought from staff at the USDA Forest Legacy Program and from conservation organizations and agencies in each state. These groups were also asked to identify names of other organizations in their state that might hold WFCEs. These subsequent organizations were then contacted about the easements they hold. Because conservation organizations tend to be knowledgeable of the activities of other organizations within their state, this method was successful in creating a list with the majority of WFCEs over 1,000 acres. Assurances of privacy measures were given to the conservation professionals, in order to obtain the most accurate information.

The majority of easements identified in this manner was obtained in printed form and formed the basis of the study sample. In certain instances, the authors were only able to obtain copies of a subset of an organization’s WFCEs over 1,000 acres, or in fewer cases, none at all. Despite these exceptions, 82 WFCEs over 1,000 acres were obtained, spanning a broad range of sizes (Figure III.1), ages (Figure III.2), and regions (Figure III.3). This collection of easements became the study sample for the easement comparison study (For a description of the regions used, see section III.2.1).

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20 Number ofEasements

0 1,000-5,000 5,001-10,000 10,001-20,000 20,001-50,000 50,001 or Larger Size of Easement (acres)

Figure III.1 Easement sample set by size of easement property in acres.

20 Number of Easements

0 1985-1989 1990-1994 1995-1999 2000-2003 Age of Easement (Year Signed)

Figure III.2 Easement sample set by age of easement (year signed).

Chapter III – Objectives and Methodology 70

20 Number ofEasements

0 NE SE MW NW SW Region

Figure III.3 Easement sample set by geographic location.

The methods outlined above did not lead to a random sample of easements, but this shortcoming was mediated by the diversity of the study sample in size, age, and location. Eighty-two easements were read and applied to the easement comparison matrix (see glossary of terms).

III.1.3 Monitoring Survey Sample Set

The objective of the survey analysis was to understand how WFCEs are currently monitored and the strengths and weaknesses of the monitoring. More specifically, the objective was to reflect the techniques used across the range of organizations and individual monitoring professionals. To accomplish this, a subset of the larger sample was used.

The easement sample set was broken down into a subset of 51 easements for the purpose of conducting surveys. • Easement Comparison Study Sample Set: 82 easements • Monitoring Survey Sample Set: 51 easements

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The survey subset was created with a methodology designed to achieve the following goals: 1) Include as many monitoring individuals as possible. 2) Avoid a large number of easements monitored by one individual. 3) Maintain a diverse study sample by size (acreage). 4) Maintain a diverse study sample by age (easement date). 5) Maintain a diverse study sample by region. 6) Employ a systematic and unbiased selection process. The following rules were used to select the survey study sample from the easement study sample.

1) Ensure at least three easements from every age class. METHOD: Easements were grouped into four age classes (1985 to 1989, 1990 to 1994, 1995 to 1999, and 2000 to 2003). If an age class had more than three easements, three easements were selected at random from the age class. Any selection that repeated a monitoring individual already selected was discarded, unless avoiding repetition of a monitoring individual was impossible. These easements were included in the survey study sample. If there were three or fewer easements in an age class, then all were included.

2) Ensure at least five easements from every size class. METHOD: Easements were grouped into seven size classes by acreage (1,000 to 5,000; 5,001 to 10,000; 10,001 to 20,000; 20,001 to 50,000; 50,001 to 100,000; 100,001 to 200,000; and more than 200,000). For each size class, the number of easements (in addition to any easements already selected for that age class through step 1) necessary to reach the minimum of five from that size class was determined. If a size class needed additional easements, they were selected at random from the size class. Any selection that repeated a monitoring individual already selected (in this step or in Step 1) was discarded, unless avoiding repetition of a monitoring individual was impossible. These easements were included in the survey study

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sample. If the number of easements in a size class matched, or was less than the number needed, then all were included.

3) Ensure at least one easement from each monitoring individual. METHOD: Any monitoring individuals not selected through steps 1 and 2 were included by the random selection of one of their easements. (There were no monitoring individuals responsible for easements in the easement study sample who monitor easements in two states. Therefore, this step assured regional diversity as well as diversity of monitoring individuals).

4) Complete the survey sample while avoiding more than five easements for one individual. METHOD: Additional easements were selected at random to complete a study sample of fifty easements. Any selection that represented a sixth easement for a single monitoring individual was discarded.

Easements which were known to be unavailable for monitoring surveys were left out of the survey sample selection process. Surveys could not be administered for several easements in the survey sample. The survey sample ultimately included 51 easements, of which 39 were surveyed via conversations with 24 monitoring professionals.

For the monitoring data reported in the results section, it is important to note that the findings were based on the easements for which monitoring is currently being done. An exception to this procedure was made if an organization had an established protocol for monitoring similar WFCEs and will monitor the new easement in like fashion once enough time has elapsed for monitoring to take place. In these cases, the survey was conducted for the new easement assuming that their established monitoring protocol would be followed.

Chapter III – Objectives and Methodology 73

This methodology met the primary objective of including the largest number of monitoring individuals in the survey sample as was possible. The survey sample also maintained a distribution of size (Figure III.4), age (Figure III.5) and region (Figure III.6).

50 Easement Sample Set 40 M onitoring Survey Sample Set

20 Number of Easements

0 1,000-5,000 5,001-10,000 10,001-20,000 20,001-50,000 50,001 or Larger Size of Easement (acres)

Figure III.4 Easement sample set and monitoring survey sample set by size of easement property in acres.

50 Easement Sample Set

40 M onitoring Survey Sample Set

20 Number of Easements of Number

0 1985-1989 1990-1994 1995-1999 2000-2003 Age of Easement (Year Signed)

Figure III.5 Easement sample set and monitoring survey sample set by age of easement (year signed).

Chapter III – Objectives and Methodology 74

50 Easement Sample Set M onitoring Survey Samp le Set 40

20 Number ofEasements

0 NE SE MW NW SW Region

Figure III.6 Easement sample set and monitoring survey sample set by region.

The monitoring survey sample has a greater proportion of larger easements and more recent easements than the easement comparison study sample. The regional distribution is also different between the two study samples. While this difference creates limitations in making generalizations about monitoring techniques on the larger easement comparison study sample, it is critical to the study findings to identify trends in the techniques used by the individuals monitoring these easements. Therefore, slight biases toward larger easements in the monitoring survey study sample were accepted, in order to reap the benefits of a sample more representative of monitoring individuals. This decision was made more palatable by the fact that there is a trend in the easement comparison study sample toward larger WFCEs in recent years (Figure III.7). Overcoming the challenges specific to monitoring these large easements is likely to become more important if this trend continues. The bias toward more recent easements was also deemed acceptable. The monitoring techniques currently used for a WFCE will not necessarily be skewed by the age of the easement. The baseline documentation, however, is likely to be different for easements varying in age. The baseline

Chapter III – Objectives and Methodology 75 documentation efforts from recent years are likely to be of more interest to the conservation community than those conducted many years ago.

100%

90%

80%

70% 50,001 to 100,000 60% 20,001 to 50,000 50% 10,001 to 20,000

40% 5,001 to 10,000 1,000 to 5,000 30%

20%

10%

% of Easements in Size Class for a Given AgeClass Given a for Class Size in %Easements of 0% 1985-1989 1990-1994 1995-1999 2000-2003 Age of Easement (Year Signed)

Figure III.7 Easement sample set by size over time. Each bar represents 100% of the easements in a given age class.

III.2. Easement Comparison Study

Objectives:U U There were two major components of the easement comparison study. The first involved identifying and categorizing the legal language of the easements in the study sample. To provide an understanding of the trends in legal language, the purposes, restrictions, and forest management requirement sections of the easements were listed. To facilitate reference and eventual analysis, the year of signing, state, grantor, grantee, and acreage were catalogued for each easement. This information enabled the comparison of individual easements or groups of easements by region, size, age, and the holding organization. The second component involved using much of the data compiled from the aforementioned sections to create custom surveys to be administered to monitoring professionals. These surveys are described in greater detail in section III.3.

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III.2.1 Determine Trends in Easement Language for: Purposes, Restrictions and Forest Management Requirements

Easement language was analyzed by categories based on a matrix of easement purposes and restrictions. Format for the matrix was adapted from tables presented in Protecting the Land: Conservation Easements Past, Present, and Future (Gustanski and Squires 2000). The organization followed the format typically utilized in WFCEs.

A matrix of easement language was developed using a model of easement language comparison (Gustanski and Squires 2000) and examinations of sample WFCEs, and was reviewed by a land conservation professional (See Appendix A). Each easement in the study sample was entered into the matrix. For example, one purpose category was “biodiversity.” If an easement had “preserve biodiversity” as one of its purposes, this category was entered. The presence of restrictions was indicated in a similar fashion. Language in the restrictions and reserved rights sections of easements was grouped together for determining restrictions, since both sections informed the degree to which activities on and uses of the land are allowed by the easement. For both purposes and restrictions, assumptions were avoided (such as assuming an implicit restriction against fishing if “public access” was restricted) and relied on the restriction or purpose being explicitly stated. However, allowances were made for reasonable variations in wording: for example, “no angling,” and “no taking of fish” were both categorized as “no fishing”.

Separate categorical headings in the matrix were created to organize easement language into general and specific sections. The aggregated general section allows a simplistic overview of the existing language of individual easements. Detailed headings allow specific analysis of the easement language. For example, while “recreation activities” in the general section reveals the overall presence or absence of recreational activity, the detailed headings allow the reader to know what kinds of specific recreation restrictions are mentioned (such as ORV use).

As a pre-test of the matrix, two readers identified language within the purpose, restriction, and forest management requirement sections of eight different easements. To maximize

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efficiency and to reduce error, a set of instructions was created to guide the reading of easements and to provide consistency among the four easement readers in their approach of identifying and categorizing language.

III.2.1.a Forest Management Plans

Forest management requirements constitute a distinct section of the matrix, since the majority of WFCEs tend to separate forest management requirements from other restrictions. Since many WFCEs require a forest management plan to direct forestry activities and list guidelines for topics and requirements that must be included in such plans, the language pertaining to forest management plans was categorized separately from the general easement. Although many WFCEs use forest management plans to guide forest management, some easements include forest management requirements without specifying the need for a forest management plan. Easement language about forest management plans was considered separately to determine how each easement handles the issue of forest management. For each easement, readers indicated whether a forest management plan was required and whether approval of the plan by the easement holder was required.

III.2.1.b Special Management Areas and Best Management Practices

Similar to forest management plans, many easements include specific language (purposes, restrictions, etc) concerning special management areas. These were classified separately from the main easement. This distinguishes between restrictions that apply to the entire property and those that only apply to a portion of the property. WFCEs also often require that forestry activities follow best management practices (BMPs). BMPs are usually developed to be applied in a certain state or region, or for a specific use or type of ecosystem. Since BMPs often guide forest management requirements in easements, it is necessary to consider BMP language in order to gain a comprehensive understanding of the forest management requirements for particular easements. Limitations to certain forestry activities or procedures promoted by these BMPs were considered to be restrictions in the easement. However, these were categorized separately to enable

Chapter III – Objectives and Methodology 78 researchers to distinguish between restrictions listed in the easement and those contained in BMPs.

III.2.1.c Approaching Data Analysis

Once all of the easement comparison data was collected, it was reorganized and consolidated for easier analysis. Redundancy was eliminated by collapsing the data into more logical and streamlined categories. Three main areas of interest were targeted for analysis: (1) easement holder, (2) easement age, and (3) easement size. For each of these areas, trends were identified nationally (e.g. public holders v. private holders), and the data for each area were also compared regionally (Northwest, Southwest, Midwest, Northeast, and Southeast).

Regions were identified as follows, using only the states represented in the easement comparison study sample set (see Figure I.1): 1 – Northeast (Maine, Vermont, Hew Hampshire, New York, Pennsylvania) 2 – Southeast (North Carolina, South Carolina, Alabama, Florida) 3 – Midwest (Wisconsin, Michigan) 4 – Northwest (Washington, California, Wyoming, Hawaii, Montana) 5 – Southwest (New Mexico, Utah)

In addition to the areas of interest mentioned above, six themes (Water, Technology and Extraction, Development, Forest Management, Ecosystems and Rare Species, and Recreation) were used as part of the data analysis. These themes were chosen based on 1) information from the literature review, 2) topics raised at the 2003 Land Trust Alliance Rally, and 3) the purposes and restrictions found in the first phases of the easement comparison study. These themes were used to conduct data analysis at the national and regional level. Only regional trends in easement holder, age, and size that deviated from national trends were analyzed.

An associated set of purposes and restrictions was developed for each theme, which was used to identify the two most relevant purposes and four most relevant restrictions for each theme. The decision of which purposes and restrictions were most relevant for each theme was evaluated by a land management professional (Hall 2004). Analysis by theme

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attempted to answer two questions: (1) What percent of easements mention at least one purpose or restriction in each theme category?; and (2) What is the average number of theme-based purposes or restrictions that those easements mention? Answers to these questions were used to determine trends in the themes that are most often exhibited by WFCEs based on (1) easement holder, (2) easement age, and (3) easement size.

III.2.2 Provide Content for the Monitoring Survey

The monitoring surveys were compiled from data generated by the easement comparison study. That data included: 1) a single list of all likely easement language (including restrictions, purposes, etc.), and 2) individual lists of the pertinent language found in each easement. These individual lists were used as the basis for the specific questions asked in the monitoring surveys in order to identify and evaluate the monitoring regime for those easements. Questions were asked of the monitoring professional for a given easement on a subset of the restrictions and purposes that pertained to that easement (see discussion of survey methodology below).

III.3 Monitoring Surveys

The primary data source used for determining information about WFCE monitoring was a set of semi-structured telephone surveys of 23 monitoring personnel representing 15 states and 51 easements. Monitoring personnel were given written and verbal assurances of privacy to encourage honest and complete answers. The survey was approved by the University of Michigan’s Institutional Review Board. A survey template can be found in Appendix B.

III.3.1 Why was a Survey Used?

The use of a survey was selected as the optimal method for gathering data about monitoring methods currently in use on WFCE lands. Of particular interest was the correlation between monitoring and the restrictions and purposes listed in the easement.

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The survey was designed to answer the following questions : • What is the range of monitoring techniques in use on WFCE lands? • How does monitoring correlate to restrictions? • To what extent is monitoring done on WFCE lands? • What is the perceived effectiveness of monitoring techniques, in the opinion of the monitoring staff?

III.3.2 Why a Phone Survey?

Administering the survey by telephone was chosen for several reasons: 1) The number of WFCEs over 1,000 acres with staff willing to participate limited the study sample. With a relatively small selection of individuals, it was essential to obtain a high response rate among that group in order to achieve a well- rounded data set. 2) Due to the length and detail of the survey, and the inevitable presence of qualitative replies not easily recorded on the survey, the data would be more complete and accurate if administered by phone. 3) The opportunity to engage in a dialogue with monitoring professionals was valuable. 4) To minimize the variation in preparation and research that went into completing the survey.

III.3.3 Why a Customized Survey?

In order to accurately survey the respondents about the link between their monitoring and the restrictions in their easements, each interviewer needed to know the details of a particular easement for the corresponding interview. While one document containing all the possible inclusions in an easement might have been used, it would have been significantly more time consuming and awkward, and would not have allowed the interviewers to speak confidently about the contents of an easement.

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While the surveys used data from the easement comparison study, they did not include questions about every restriction and purpose found in each easement. In order to keep the size of the surveys manageable, the survey questions focused on the most pertinent restrictions in terms of monitoring. For example, restrictions on subdivision did not translate into questions about how subdivisions were monitored.

The purposes section data was also not translated directly into survey questions about monitoring. Purposes from the “ambient conditions” and “forest health” sections were the only ones inquired about in the monitoring surveys. As in other sections, items that were not pertinent to the monitoring were not included, such as “economic viability.”

III.3.4 Survey Sections & Collection

Monitoring experts were contacted in writing and asked if they would be willing to participate in the study by way of a phone interview. In order to facilitate the survey process, willing respondents were emailed a copy of the questions several days before the phone call. This gave respondents the opportunity to review the document and prepare their answers.

Three members of the research team conducted the surveys. Survey questions (forced choice and open-ended) were predetermined. Explanations of questions were given when necessary. The interviewers used probing comments and questions to obtain clear responses about each monitoring method. All interviews were recorded to ensure accurate reporting of answers; confidentiality of response was guaranteed to all monitoring experts. The survey was pre-tested on 5 individuals chosen at random within the survey sample, resulting in minor modifications of questions.

The survey consisted of three categories: organization demographics, restriction monitoring, and purposes monitoring (not tied to a specific restriction). The data collected for each easement during the easement comparison study was used to custom design 51 surveys. Nine questions about organization demographics remained the same for all surveys. The number of restriction and purpose questions comprising the survey

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ranged from 21 to 79 items, correlating to the number of restrictions and purposes stated in each easement.

Respondents were asked for demographic information about their organization, including the geographical area of focus, number of WFCEs held, number of monitoring personnel, annual stewardship budget, total acreage protected by WFCEs and whether or not they have a monitoring protocol. If a written monitoring protocol did exist, a copy was requested for further analysis. This demographic information was collected for analysis of potential trends related to easement data (for example, do organizations with more monitoring personnel monitor more frequently?).

Respondents were asked to describe the overall monitoring method used for the entire set of restrictions and purposes relating to their easement. Open-ended questions guided monitoring experts as they explained the monitoring techniques they used. Most responses about monitoring techniques fell into relatively few categories and could be readily coded. If respondents used multiple techniques to monitor for one restriction, this combination strategy was coded as one monitoring method. When a combination method was used (e.g. ground & aerial) single ratings for the effectiveness and frequency of this combination were requested, instead of specific ratings for each one. In addition to current monitoring techniques, respondents were asked whether or not baseline data was collected for each restriction or purpose.

The purpose section of the survey was set up the same way as the restriction section, with questions about the frequency and effectiveness of the overall method in use. As in the restriction section, respondents were asked if baseline data was collected on the purpose (e.g. water testing data for a purpose of “maintain water quality”). The effectiveness scale in the purpose section rated the certainty to which experts could determine if the purpose was being achieved. Only direct monitoring for purposes was counted as monitoring. Thus, for a purpose of “maintain water quality”, a response of “water testing” was recorded as monitoring, while a response of “ensure that riparian zones are intact” was not recorded as monitoring.

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Throughout the survey, monitoring experts were presented with forced choice questions about the frequency of their monitoring activity based on a five-point scale (more than two times per year/twice per year/once per year/once every two years/and less than once every two years). Respondents were asked to rate the effectiveness of each monitoring activity on a 5-point Likert scale with 1 equaling ineffective and 5 equaling highly effective.

The survey terminology varied slightly from that used in the easement comparison study: “annual meeting” was part of the easement comparison matrix, but “meeting with landowner” was used in the surveys. This distinction has been maintained throughout the analysis for accuracy. During the analysis of survey data, changes were made to the way frequency was calculated. Data from the original scale (see above) was re-calculated into a numeric scale incorporating the number of methods in use. For example, a property monitored by ground alone, once a year, was rated a one. A property monitored with the combination of ground and aerial, each once a year, was rated a two, since data was collected on it during more than one visit. While this method more accurately measured frequency, it was not the direct response of those surveyed and may bias the frequency results towards those monitoring with combination methods. Regional data was analyzed based on the regions used in the easement comparison study.

III.4 Limitations of Study

III.4.1 Introduction/General Project Limitations

What is a Working Forest Conservation Easement (WFCE)? No precise definition exists for this term, only broad and inclusive definitions (see glossary of terms). As a result, the use, management and ownership of the properties included in this study may vary considerably. For example, one property may be used primarily for cattle grazing but have both large tracts of forest and forestry provisions in the easement language, whereas another property may be exclusively used for industrial forestry. Both of these were considered WFCEs under the definition used by this study, which simply required that a property be over 1,000 acres and considered a “working forest” by the land professionals

Chapter III – Objectives and Methodology 84 contacted for information about the easement. This study is not based on a random sample of easements, thus the results may or may not be representative of all WFCEs in the U.S. At the time of this study, no comprehensive national list of easements was in existence, therefore it is difficult to know if the sample is representative.

Data for several regions included in this study reflected a limited number of easements. For some regions, such as the Midwest, a small number of easements were identified. While the number of easements in a given region may represent a large percent of the total WFCEs (greater than 1,000 acres) in that region, the results are statistically limited due to the small sample size. For this reason, regional analysis was only conducted where regional trends differed from aggregate trends.

The decision to research WFCEs over 1,000 acres was done to eliminate a large number of small easements from the sample set. This allowed the study to focus on large forest tracts, those most likely to be viable for forestry uses in the long term. The value of limiting the study was confirmed by Tina Hall, from the Michigan Chapter of the Nature Conservancy (Hall, 2003). As part of the analysis stage, easements were split into smaller groups based on age, size and regional categories. Age categories were created with 5-year intervals. Size classes were chosen based on natural breaks in the data. Regional categories were determined by dividing the country into five regions along commonly used divisions.

For several reasons, the monitoring survey results are not comparable to the easement language comparison study results. For example, the monitoring survey sample set has a different regional, size and age distribution than that of the sample used in the easement comparison study. Also, the monitoring surveys were based on a subset of the information gathered for each easement in the easement language comparison. While the matrix was consolidated for easier analysis of trends, the survey was not. This resulted in some of the trends found in the survey analysis having no equivalent data from the matrix analysis.

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III.4.2 Limitations from the Easement Comparison Study

III.4.2.a Developing the Matrix

The methodology used for developing the matrix for easement comparison consisted of the examination of several sample easements to generate lists of restrictions and purposes, consultation of a land conservation professional, and reference of the book, Protecting the Land: Conservation Easements Past, Present, and Future (Gustanski and Squires 2000). Restrictions were identified based on the content of this book and the reading of sample WFCEs. Easement readers indicated the presence of terms found in the matrix, or language very similar to those terms. This led to an inclusive definition of restriction, which should be considered when reviewing the results. For example, this inclusive definition likely resulted in higher percentages of restrictions “not monitored” or “not in baseline.” In some cases, survey respondents expressed their disagreement with our definition (or inclusion) of a restriction.

The format used for comparing the language of easements was a matrix, containing rows of restrictions and purposes that might be found in the easements. After reading through all of the easements and filling out the matrix, it was consolidated, which involved combining similar restrictions and purposes into more general categories. Decisions on what and how to consolidate the matrix were made in a way that appeared logical (e.g. “fishing” was lumped into “non-motorized recreation”) but resulted in occasional loss of resolution. In addition to consolidating the matrix, the research team identified a small number of restrictions and purposes that were unnecessary or ambiguous and removed them from the matrix. (For example: the purpose of “architectural aspects” was not found in any easement, and was removed).

III.4.2.b Reading Easements

Four researchers read and analyzed easement language in the 82 WFCEs used in the easement comparison study. Prior to this effort, one easement was selected and applied to the matrix by multiple reviewers. From this review, a protocol for applying easement

Chapter III – Objectives and Methodology 86

language to the matrix was developed to minimize discrepancies in the interpretation of easement language (See Appendix A).

III.4.2.c Thematic Analysis

Six themes were used in one part of the data analysis (The process for selecting these themes is outlined in section III.2.1c). A set of associated purposes and restrictions was developed for each theme. From these sets of theme-based purposes and restrictions, the two most relevant purposes and four most relevant restrictions for each theme were identified. Review by a land management professional (Hall 2004) verified the appropriateness of the selection. For five of the six themes two purposes and four restrictions were used for analysis, while the “recreation” theme used one purpose and three restrictions (There was only one purpose and three relevant restrictions related to recreation). For this reason, trends in the recreation theme must be considered independently from trends in other themes. In addition, trends seen in the data from the theme analysis cannot be considered comprehensive, since they are based on a small subset of the purposes and restrictions associated with each theme. While these limitations exist, the results of the theme analysis were consistent with results seen in the overall data analysis. This similarity lends credibility to the idea that the theme analysis can be considered a representative summary of the data.

III.4.3 Limitations from the Monitoring Surveys

III.4.3.a Study Set Selection

The selection process of easements for the monitoring survey study sample allowed for the inclusion of easements from all categories with regards to age, size, state, and holder. This process did not create a random sample of the 101 easements collected overall, but instead assured that the easements included in the monitoring survey would be representative of all time periods, states, holders, and size categories.

Chapter III – Objectives and Methodology 87

III.4.3.b Survey Participation

Not all monitoring professionals were willing to participate in the monitoring survey, for this reason four surveys were not completed. It may be that some of those who were unwilling or unable to participate were conducting monitoring which they considered inadequate or ineffective. On the other hand, the monitoring that those four individuals were doing may have been first rate. In any case the final results would likely be different, had they participated in the research.

III.4.3.c Conducting Surveys

While considerable effort was made to assure similar interview styles, three different interviewers conducted the 39 surveys via telephone. Undoubtedly, interviewers differed in their interpretation of answers, and their surveying technique. Individual differences may have extended into the range of time spent preparing for each survey (including reviewing the easement language). During the surveys, if the respondent did not know how to answer a question, or did not agree with the interpretation of the easement, questions were left blank. It was left up to the interpretation of the surveyor and the respondent to decide when to skip questions.

The monitoring professionals interviewed also varied in their experience, perspective, knowledge, and personality. This factor is especially important to keep in mind when reviewing the subjective ratings for effectiveness.

III.4.3.d Purpose Monitoring

In the purpose monitoring section of the survey, several respondents replied that their monitoring for goals was “performance-based” or “indirect” even though the survey instrument and the interviewer explain that the definition of purpose monitoring for this research was monitoring that went above and beyond compliance monitoring. For this study, “indirect” or “performance-based” monitoring was considered “not monitored”, as there was no direct monitoring activity for the goal (e.g. water testing for “water quality”). However, it could be argued that a well-designed set of easement restrictions should provide for those goals.

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III.4.3.e Third Party Monitoring

When respondents indicated the use of “third-party monitoring,” no further data was collected. Interviewers did not follow up with the third-party to gather data on methods, frequency, or effectiveness.

III.4.3.f Frequency Rating

In order to analyze the frequency of monitoring data, the original frequency scale (less than once every two years, every two years, once a year, twice a year, more than twice a year) was re-calculated into a numeric scale that incorporated the number of methods in use. For example, a property monitored by ground alone, once a year, was rated a one. A property monitored with the combination of ground and aerial, each once a year, was rated a two, since data was collected on it during more than one visit. While this method more accurately measured frequency, it was not the direct response of the respondents and may bias the frequency results towards those monitoring with combination methods.

The methodology used during the surveys for recording monitoring information limited the variety of responses that were received in two ways: 1) an overall monitoring method was recorded for the entire set of restrictions and goals, instead of specific information on each one, and 2) when a combination method was used (e.g. ground & aerial) single ratings for the effectiveness and frequency of this combination were requested. This was necessary to control the size of the survey, but precluded a specificity which might have indicated which of the methods in a combination was viewed as most effective.

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IV. RESULTS AND ANALYSIS

This chapter presents results and analysis of WFCE language and of methods used to monitor WFCEs. Following these two sections is a synthesis section in which observations linking both easement language and monitoring are discussed.

IV.1 Trends in Easement Language

This section presents trends in the legal language of WFCEs, beginning with an overview of the sample set. Presented next is a description of six basic themes used to group purposes, restrictions, and required forest management requirements followed by a discussion of the relative occurrence of these across easements. Each theme is then presented in its own section in which trends in the specific purposes and restrictions are considered. Throughout this analysis, trends were explored on the easement sample set in aggregate, by region, by easement holder, by age of the easement, and by size of the easement. One note to keep in mind while reading this section is that the term restriction has been defined broadly. It is taken to mean any negative restriction on a landowner, for instance “you shall not construct any buildings on the property” and any affirmative action required by the landowner, for instance “you shall maintain quality water courses.” The term also encompasses positive and negative forest management activities; such as, “you shall not clear-cut more than 40 acres” and “you shall maintain a 200 foot buffer around all water bodies.”

IV.1.1 Description of Sample

To determine trends in easement language, a national sample set of 82 working forest conservation easements was examined. Thirty-nine of the 82 easements analyzed (48%) were held by public entities, thirty-eight (46%) by private organizations, and five (6%) were held jointly (Figure IV.1).

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Joint 6%

Public 48% Private 46%

Figure IV.1 Percentage of 82 easements by holder.

These five WFCEs, all of which occurred in the Northeast, were held jointly by a land trust and public agency. The small sample size and homogeneity of the five jointly held WFCES were not likely to produce any important findings and thus, were not analyzed in this chapter. The 82 WFCEs represent four distinct age classes, 1985 to1989 or age class one, 1990 to1994 or age class two, 1995 to1999 or age class three, and 2000 to 2003 or age class four (Figure IV.2). Two easements (2.0%) appear in age class one, nine (11.0%) in age class two, 33 (40.0%) in age class three, and 38 (47.0%) in age class four.

1985-1989 2% 1990-1994 11%

2000-2003 47%

1995-1999 40%

Figure IV.2 Percentage of 82 easements by age (year signed).

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For this analysis, the 82 WFCEs have been broken down into five different size classes: 1,000 to 5,000 acres or size class one, 5,001 to 10,000 acres or size class two, 10,001 to 20,000 acres or size class three, 20,001 to 50,000 acres or size class four, and 50,001 acres and greater or size class five. Forty-seven of the easements (56.0%) fall into the 1,000 to 5,000 acre size class. Eight (10.0%) appear in the 5,001 to10,000 acre size class, thirteen (16.0%) in the 10,001 to 20,000 acre size class, seven (9.0%) in the 20,001 to 50,000 acre size class, and seven (9.0%) in 50,001 and larger size class (Figure IV.3).

50,001 and larger 9% 20,001-50,000 9%

10,001- 20,000 16% 1,000-5,000 56%

5,001-10,000 10%

Figure IV.3 Percentage of 82 easements by size of property (acres).

The five regions of the country in which these easements appeared were: the Northeast with 56 easements (69.0%), the Northwest with 11 easements (13.0%), the Southwest with 7 easements (9.0%), the Southeast with 6 easements (7.0%), and the Midwest with 2 easements (2.0%) (Figure IV.4).

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Southwest 9%

Northwest 13%

Midwest 2% Southeast 7% Northeast 69%

Figure IV.4 Percentage of 82 easements by geographic location.

Although it is a much more specific descriptor of the sample, Forest Legacy funding deserves mention at this point in the discussion, primarily because it is not a restriction per se and would be somewhat out of place later on in the chapter. Forest Legacy is a program of the U.S. Forest Service that provides funding for acquisition but not for ongoing monitoring and evaluation of forestry practices. Further, Forest Legacy funding is a very important piece of many publicly-held easements. Forest Legacy funds were used a total of 17 times in 82 easements.

Twelve of these WFCEs, or 70%, were found in the Northeast region while no WFCEs in the Northwest utilized Forest Legacy funds (Figure IV.5). This could be due in part to the fact that only three of 11 easements in this region are held by public entities, a requirement of the Forest Legacy program. Additionally, as there is a vast amount of public land in the Northwest relative to the Northeast, easements tend to not provide for public access, as this need is being fulfilled by other lands (Best 2003).

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Southwest 18%

Northwest 0% Midwest 6% Southeast 6%

Northeast 70%

Figure IV.5 Percentage of 17 easements funded by the USDA Forest Legacy program.

Of particular significance is the decreasing frequency of “Forest Legacy funding” with regard to size. One would think that the larger and consequently the more costly the property, the more often Forest Legacy funds would be used to finance the deal. However, easements in the 5,001 to 10,000 size class were funded most frequently by these funds. It is likely the case that large conservation deals do utilize Forest Legacy funding, but that this funding is limited and that the easement for this portion of the property is required to be held separately by the state.

Although the way the regions of the country were configured for this study does not allow a direct comparison to National Research Council (1998) statistics, the juxtaposition is useful in determining how regional acreage in WFCEs reported in this study compares to total nonfederal forestland acreage by region for the U.S. In this study Northeastern easements covered 1,883,126 acres out of a total of 2,179,544 acres, or 86.4%. The National Research Council reported that in 1992, this region had 76,337,000, or 15.7% of the nation’s total. Other discrepancies include the Southeast, which in this study comprised only 1.7% of total acreage of WFCEs despite accounting for 16.2% of the nation’s total nonfederal forestland. Clearly then WFCEs have been a Northeastern

Chapter IV – Results and Analysis 94 phenomenon, as the total acreage in easement in this region far exceeds both the acreage in any other region and its proportion of the nation’s total forestland.

IV.1.2 Easement Language Themes

In the reading of these WFCEs, the following six themes became apparent: water, technology and extraction, development, forest management, ecosystem and rare species, and recreation. Based on the content of the easements, these six themes captured nearly all purposes and restrictions that appeared. These themes represent a logical way of presenting the data according to the most important land-use and ecological components of the WFCEs that were analyzed. All relevant purposes and restrictions for a particular theme were identified. Simple count data was collected and comparisons across easement holder, age class, size class, or region were made. It is important to note when reading comments on regional data that many of the regions were comprised of a very small number of WFCEs. For example, while the Northeast was comprised of 56 easements, the next largest region, the Northwest, had only 11 easements (refer to Figure IV.4 for a graphical depiction of easements by region).

IV.1.2.a General Theme Results

While the bulk of this chapter provides results and analysis on the trends of individual purposes and restrictions related to the six themes, it is useful to examine these themes in general. The numbers in Table IV.1 are based on the two most important purposes and four most important restrictions, which were identified to represent each theme. For recreation, these figures are based on one purpose and three restrictions. These purposes and restrictions were identified with input from professional staff at The Nature Conservancy. For a list of these purposes and restrictions by theme, please refer to Appendix D.

It is clear from Table IV.1 that forest management purposes were mentioned more frequently than purposes for any other theme. This of course makes sense due to the centrality of forest management in WFCEs. Also, in the 82.9% of easements that mentioned forest management purposes, an average of 1.6 purposes were mentioned.

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Ecosystem and rare species purposes were also mentioned in the vast majority of easements (78%). Technology and extraction-related purposes were mentioned the least frequently of all six themes, in 35.4% of WFCEs. Also surprisingly low in frequency were water-related purposes, which appeared in 53.7% of WFCEs.

Restrictions for three of the six themes, water, technology and extraction, and development, were mentioned in at least 90% of WFCEs. Appearing in 90.2% of easements, water restrictions do not mirror the trend seen in water purposes. This would lead one to believe that there are many water restrictions appearing in WFCEs that are not justified by easement purposes. Development restrictions appeared in 98.8% of easements and on average 3.3 restrictions were mentioned. These numbers were likely so high because development restrictions addressed multiple goals. Relative to the other themes, ecosystem/rare species restrictions were mentioned infrequently in the WFCEs examined.

Table IV.1 Percentage of 82 easements with purposes and restrictions in each easement language theme and the average number of purposes and restrictions in those easements.

Purposes Restrictions % of Avg # % of Avg # Easements Purposes Easements Restrictions Water 53.7 1.4 90.2 2.5 Technology and extraction 35.4 1.1 91.5 2.1 Development 65.9 1.1 98.8 3.3 Forest management 82.9 1.6 84.1 2.0 Ecosystem / rare species 78.0 1.6 65.9 2.0 Recreation 68.3 1.0 72.0 2.0

Tables detailing theme-related purposes and restrictions according to easement holder, age, and size are presented in Appendix D. The following observations are among the most important for theme-related purposes and restrictions by easement holder. Privately-held easements mentioned water purposes and restrictions more frequently than publicly-held easements. Forest management purposes and restrictions were mentioned slightly more frequently by privately-held WFCEs than publicly-held WFCEs. This difference was more pronounced for both ecosystem and rare species purposes and restrictions. This trend however was reversed for recreation purposes and restrictions, as

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publicly-held WFCEs mentioned purposes and restrictions more than privately-held WFCEs.

Water purposes experienced a large increase in frequency between 1990 to 1994 and 1995 to 1999. Water restrictions showed no discernible trend over time. Technology and extraction restrictions were mentioned more frequently, on average, in the two most recent age classes. Despite the fact that development restrictions were mentioned in nearly every WFCE over time, purposes appeared less frequently, in about 65.0% of WFCEs over time. While forest management purposes displayed no general trend over time, restrictions have become increasingly frequent over time. Ecosystem/rare species purposes and restrictions follow the same trend. They both increased in frequency over time. Recreation purposes and restrictions showed no trend over time.

Water purposes increased in frequency with regard to size. It appears that for the largest size classes, WFCEs have the opportunity to protect entire watersheds and/or intend to protect a watershed and therefore mention water purposes in the largest size classes. As was the case for easement holder and age, development restrictions were mentioned in nearly every WFCE of every size. Ecosystem/rare species purposes and restrictions were mentioned more frequently in WFCEs of larger size classes. This is likely because larger easements can address issues at a landscape scale. Recreation purposes were mentioned more frequently in WFCEs of larger size, likely because larger properties offer more recreational opportunities and may be more demanded by the public. In the sections that follow, each theme is considered and trends in specific purposes, restrictions, and required forest management requirements are presented.

IV.1.3 Water

In the 82 WFCEs analyzed water emerged as a theme of increasing importance to easements, as its various purposes and restrictions were mentioned frequently across holder, size, and age. While the water-related purposes analyzed deal with the multiple values of water resources, such as habitat and wetlands, the restrictions tend to deal mainly with disruptions to surface water. Assuming that limited development will occur

Chapter IV – Results and Analysis 97

on these properties, this finding makes intuitive sense, as timber harvest activities are more likely to harm surface waters than groundwater or wetlands.

V.1.3.a Water: Aggregate Data

Water Purposes: Aggregate Data Four water-related purposes were identified for analysis: protection of “water quality,” protection of “shoreline/riparian integrity,” maintain “habitat for fish and aquatic wildlife,” and maintain “wetland area.” The protection of “water quality” was the most frequently mentioned purpose of the 82 WFCEs studied. It appeared in 45.1% of easements. Being the most tangible of the four purposes, water quality may provide some explanation for its greater frequency relative to other purposes. Other purposes which appeared less frequently included the protection of “shoreline/riparian integrity,” mentioned in 29.3% of WFCEs and the maintenance of “habitat for fish and aquatic wildlife,” also mentioned in 29.3% of easements. The protection of “wetland area” was mentioned as a purpose in 17.1% of WFCEs (Figure IV.6).

25 N=37 20

15 N=24 N=24 10

Percent Mentioned in 82Easements in Mentioned Percent N=14 5

0 Water Quality Habitat For Wetland Area Shoreline/Riparian Fish/Aquatic Habitat Integrity Water-related Purposes

Figure IV.6 Percentage and number (N) of 82 easements with water-related purposes.

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Water Restrictions: Aggregate Data In total, 11 restrictions were included within the water theme. They are listed in Table IV.3. Of these 11, four water-related restrictions were mentioned in well over 50% of the easements studied. They were the maintenance of “buffers,” which appeared in 70.7% of easements, the use of “BMPs,” mentioned in 58.5% of easements, the prohibition against the “manipulation/alteration of water bodies,” which appeared in 57.3% of easements, and the “maintenance of quality water courses,” mentioned in 57.3% of easements. Restrictions on the construction of “water infrastructure” and the avoidance of “erosion” were mentioned with slightly less frequency, in roughly 50.0% of easements (Figure IV.7).

40 N=58 30 N=48 N=47 N=47 N=43 N=43 20

Percent Mentioned in 82 Easements 82 in Mentioned Percent 10

0 Buffers BM Ps M anipulation/ M aintain Water Erosion Alteration of Quality Water Infrastructure Water Bodies Courses Water Restrictions

Figure IV.7 Percentage and number (N) of 82 easements with water-related restrictions.

All of the water-related restrictions that were included in the monitoring survey were reported to be monitored frequently (see Survey Results section). In addition to the general importance of water quality, this apparent monitoring capability may have influenced the high rates of inclusion of these restrictions in easement language. It is curious that these high rates of inclusion for water related restrictions are not matched by higher rates of inclusion for water related purposes. The use of BMPs, while not a

Chapter IV – Results and Analysis 99

restriction per se, reflect the desire to standardize and incorporate widely accepted and current approaches to timber management, typically with a particular attention to hydrology. Restrictions dealing with the protection of “water rights,” “the pollution of water bodies,” restrictions against the use of “chemicals” and “fertilizers” will be discussed in subsequent sections.

IV.1.3.b Water by Region

Water Purposes by Region The only regional deviation from aggregate data in the occurrence of protection of “water quality” as a purpose appeared in the Northwest. Only 27.3% of Northwestern easements mentioned it, compared to 45.1% nationally. This may be due to the particular nuances of language included in easements held by a particular organization, which holds many WFCEs in this region. The protection of “shoreline/riparian integrity,” mentioned in 29.3% of WFCEs nationally, was mentioned in 85.7% of WFCEs in the Southwest, or in six of seven easements. In no other region was this purpose present in more than 27% of easements (Figure IV.8).

100

90 Shoreline/Riparian Integrity 80 Water Quality 70

20 Percentage Mentioned in Each Category Each in Mentioned Percentage

0 Aggregate Southwest Northwest Southeast Northeast M idwest Geographic Region

Figure IV.8 Percentage of easements that included purposes related to "shoreline/riparian integrity" and "water quality" in aggregate (82 easements) and in each geographic region.

Chapter IV – Results and Analysis 100

This purpose could be mentioned more often in Southwestern WFCEs for a number of reasons, two of which are: (1) because most of the WFCEs are held by the same organization or agency which requires this type of language in its easements and (2) due to water scarcity in this region, waterways and shoreline are more vigorously protected than in other regions. The remaining two water-related purposes, the maintenance of “habitat for fish and aquatic wildlife” and the protection of “wetland area” displayed no regional deviations from aggregate data.

Water Restrictions by Region Restrictions on the maintenance of “buffers” displayed no regional deviations from trends in aggregate data. In the aggregate, 58.5% of easements reference at least one BMP. This trend follows for all regions of the country except for the Northwest, in which only 18.2%, or two of eleven easements, reference a BMP (Figure IV.9).

100 Water Rights 90

80 M anipulation of Water Bodies 70 Water Infrastructure

30 Percentage in Each Category Each in Percentage

0 Aggregate Northwest Southwest Region & Aggregate

Figure IV.9 Percentage of easements that included restrictions related to "water rights," "manipulation of water bodies," and "water infrastructure." Data presented in aggregate (82 easements) and in the Northwest and Southwest regions.

Chapter IV – Results and Analysis 101

Restrictions against the “manipulation of water bodies” and construction of “water infrastructure” were mentioned more frequently in the Northwest and Southwest than they were in the aggregate sample. In the national sample these restrictions were mentioned 57.3% and 52.4% respectively. However, “manipulation of water bodies” appeared in 81.8% of Northwest easements and in 85.7% of Southwest easements. In the Northwest “water infrastructure” was mentioned 90.9% of the time and in the Southwest it appeared in 100% of the easements. These findings could be due to the fact that in the arid West water is a much scarcer and more intensively managed resource than it is in other regions of the country. “Maintain quality water courses” and “erosion” showed no regional deviations from trends in aggregate data.

Restrictions dealing with the protection of “water rights” are more common in the Northwest (54.5%) and Southwest (71.4%) than any other region (Figure IV.9). In the aggregate data restrictions on water rights are mentioned in 17.1% of easements. This most likely stems from the fact that the majority of WFCEs in the aggregate sample set are from the Northeast and Eastern states that use riparian rights while the Western states use prior appropriation to confer water rights.

IV.1.3.c Water by Easement Holder

Water Purposes by Easement Holder The four water-related purposes, and the breakdown of each by easement holder, are depicted in Table IV.2 below. In three out of four cases, with the protection of “shoreline/riparian integrity” being the exception, privately-held easements mentioned water quality protection purposes more than publicly-held easements. The protection of “water quality” was the most frequently mentioned purpose for both publicly and privately-held easements, with 41.0% of public easements mentioning it compared to 52.6% of private easements. The Southwest region did deviate from this trend, with 57.1% of publicly-held easements mentioning “water quality” compared to 14.3% of privately-held easements. The protection of “shoreline/riparian integrity” was the only purpose mentioned more in publicly-held easements than in privately-held easements.

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The mention of maintenance of “habitat for fish and aquatic wildlife” did not differ very much between publicly and privately-held WFCEs. The protection of “wetland area” appeared only 13 times cumulatively in 77 easements. This very well may be because easement drafters see current state and federal statutes addressing wetlands protection as

sufficient, and therefore do not view wetlands protection as a vital easement purpose.

Table IV.2 Number and percentage of easements that included water-related purposes by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

PurposesU IncludedU Water quality 16 41.0 20 52.6 Shoreline/riparian integrity 13 33.3 10 26.3 Habitat for fish and aquatic 11 28.2 12 31.6 wildlife Wetland area 5 12.8 8 21.1

Water Restrictions by Easement Holder As was the case in water-related purposes, water-related restrictions are generally found more frequently in privately-held easements (refer to table IV.3 below). This result was found to occur for seven of the 11 restrictions. It stands to reason that more water-related restrictions would occur in those privately-held easements that mention some form of water resource protection as a purpose. As a result, one could assume that these restrictions would be more enforceable and defensible if legally challenged because of the connection to the purpose of the easement.

Contrary to the trend regarding general water-related purposes and restrictions, publicly and privately-held easements address the protection of this resource in specific forest management restrictions with similar frequency. As forest management is generally a very central component of WFCEs, it is expected that this component of easements will be comprehensive. The maintenance of “buffers” and use of “BMPs” were two of the four restrictions that occurred more frequently in publicly-held WFCEs than in those held privately. Because best management practices are drafted by State agencies, it makes sense that they would be included more often in publicly-held easements. As buffers are often dealt with by BMPs, this logic also follows for the inclusion of buffer areas in

Chapter IV – Results and Analysis 103

publicly-held WFCEs. Maintaining quality water courses has a 58.9% frequency in publicly-held easements and a 50.0% frequency in privately-held easements.

Restrictions against the “manipulation/alteration of water bodies” were mentioned more often in privately-held WFCEs. However, this restriction appeared in 100% of publicly- held easements in the Northwest. Northwestern conservation organizations and State agencies may be more concerned about diverting waterways. Restrictions on the construction of “water infrastructure” and the avoidance of “erosion” followed the same pattern as “manipulation/alteration of water bodies,” as they were mentioned more often in privately-held easements. “Water rights,” while not mentioned with great frequency in either set of easements, was addressed slightly more often by private holders. The “pollution of water bodies,” was mentioned in 57.9% of privately-held easements and 33.3% of publicly-held easements. The final exception to the general trend of water- related restrictions appearing more often in privately-held WFCEs is for the restriction on fertilizer use, which was found in 53.8% of public easements compared to 42.1% of privately-held easements.

Table IV.3 Number and percentage of easements that included water- related restrictions by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Buffers 29 74.4 25 65.8 BMPs 23 58.9 20 52.6 Manipulation /alteration of water 17 43.6 26 68.4 bodies Maintain quality water courses 23 58.9 19 50.0 Water infrastructure 19 48.7 24 63.2 Erosion 18 46.2 23 60.5 Water rights 4 10.3 9 23.7 Pollution of water bodies 13 33.3 22 57.9 Chemicals 6 15.4 11 28.9 Fertilizers 21 53.8 16 42.1 Steep slope management 13 33.3 14 36.8

Chapter IV – Results and Analysis 104

IV.1.3.d Water by Age of Easement

Water Purposes by Age of Easement Table IV.4 below displays trends over time related to the appearance of water-related purposes in WFCEs. Analyzing these four purposes together clearly shows that over time WFCEs increasingly mention water protection purposes (Figure IV.10).

25 Shoreline/Riparian Integrity Habitat for Fish/Aquatic 20 Wildlife Water Qulaity 15

Number ofEasements 10

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Year Signed)

Figure IV.10 Number of easements that included purposes related to "shoreline/riparian integrity," "habitat for fish/aquatic wildlife," and "water quality" by easement age (year signed).

The protection of “water quality,” mentioned as a purpose in just one of eleven easements between 1985 and 1994, jumped to 48.5% percent in the 1995 to 1999 age class. It increased in frequency again from 1995 to 1999 and 2000 to 2003, appearing 52.6% of the time in the 2000 to 2003 age class. This upward trend could be a result of several factors, including new knowledge about the effects of logging and erosion on adjacent surface waters and the increased protection of public water supplies over time (EPA 2002). The protection of “shoreline/riparian integrity” also increased in frequency over time, jumping from 0% in the 1990 to 1994 age class to nearly 30% in the 1995 to 1999 age class. Nearly 40% of easements recorded between 2000 and 2003 mentioned it as a

Chapter IV – Results and Analysis 105

purpose. Concerning the maintenance of “habitat for fish and aquatic habitat,” a similar upward trend can be seen. Its frequency in WFCEs appears to have steadied in the 2000 to2003 age class. The protection of “wetland area” also displayed this upward trend albeit to a lesser degree.

Table IV.4 Number and percentage of easements that included water-related purposes by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

PurposeU U Water quality 0 0.0 1 11.1 16 48.5 20 52.6 Shoreline/riparian integrity 0 0.0 0 0.0 9 27.3 15 39.5 Habitat for fish and aquatic 0 0.0 2 22.2 10 30.3 12 31.6 wildlife Wetland area 0 0.0 1 11.1 6 18.2 7 18.4

Water Restrictions by Age of Easement Several water-related restrictions have remained relatively constant in their frequency over time. These include the construction of “water infrastructure,” “erosion,” the protection of “water rights,” and maintenance of “buffers.” While there were no restrictions that experienced declines over time, there were some that witnessed dips between age classes, such as restrictions on “fertilizer” use and “pollution of water bodies.” However, this pattern is likely not noteworthy due to the small number of easements in the 1985 to 1989 and 1990 to 1994 age classes relative to the two most recent.

Table IV.5 below indicates that certain restrictions show an increasing trend over time. As mentioned above, the maintenance of “buffers” has remained relatively constant over time, with a slight increase between age classes two and three. The use of “BMPs” has experienced a pronounced increase over time. This could be due to efforts by easement holders to standardize approaches to timber management and to the desire of these holders to take advantage of the expertise represented by these BMPs. Restrictions on “manipulation/alteration of water bodies” have increased over time, from 0% in 1985 to 1999 to 71.1% in 2000 to 2003. WFCEs in the Northwest deviated from this trend, as 54.5% of easements in the 1995 to 1999 age class mentioned it and 27.3% of easements

Chapter IV – Results and Analysis 106

in the 2000 to 2003 age class mentioned it. “Chemicals” and the restriction for “steep slope management” both experienced a slight increase in frequency over time.

Easement purposes often have a very clear intent and some are required to receive certain tax incentives from the IRS. Over time, certain water-related purposes have emerged as the norm in WFCEs. However, there are a great many more restrictions dealing with water issues than purposes. The data does not reflect an overall pattern in water-related restrictions, as did the data for water-related purposes. Rather, certain restrictions have remained constant while others have increased in frequency. Knowing that it would not be feasible for every easement to include every restriction, certain restrictions are chosen to the exclusion of others, hence the disparate trends between purposes and restriction over time.

Table IV.5 Number and percentage of easements that included water-related restrictions by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Buffers 0 0.0 6 66.7 27 81.8 25 65.8 BMPs 0 0.0 3 33.3 18 54.5 27 71.1 Manipulation /alteration of 0 0.0 1 11.1 19 57.6 27 71.1 water bodies Maintain quality water 0 0.0 3 33.3 22 66.7 22 57.9 courses Water infrastructure 1 50.0 3 33.3 14 42.4 25 65.8 Erosion 1 50.0 3 33.3 18 54.5 21 55.3 Water rights 0 0.0 3 33.3 7 21.2 7 18.4 Pollution of water bodies 2 100.0 3 33.3 17 51.5 15 39.5 Chemicals 0 0.0 1 11.1 4 12.1 12 31.6 Fertilizers 2 100.0 5 55.6 12 36.4 20 52.6 Steep slope management 0 0.0 2 22.2 13 39.4 16 42.1

IV.1.3.e Water by Size of Easement

Water Purposes by Size of Easement A general trend appears in water-related purposes with respect to size. The data, displayed in Table IV.6 below, shows that water-related purposes occurred more frequently in WFCEs of greater size. However, the number of easements reviewed at the larger end of the size scale is much fewer than the first three size classes, which might account for this seemingly high percentage. It should also be noted that easements in

Chapter IV – Results and Analysis 107 both the Northwest and Southwest regions only mentioned “water quality” in the first two size classes. The protection of “shoreline/riparian integrity” deviates slightly from this trend, as this purpose occurred with high frequency in WFCEs of all size classes.

Table IV.6 Number and percentage of easements that included water-related purposes by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

PurposeU IncludedU Water quality 19 40.4 2 25.0 7 53.8 4 57.1 5 71.4 Shoreline/riparian 34 72.3 7 87.5 10 76.9 5 71.4 7 100 integrity Habitat for fish and 12 25.5 4 50.0 3 23.1 3 42.9 2 28.6 aquatic wildlife Wetland area 12 25.5 4 50.0 4 30.8 1 14.3 3 42.9

Water Restrictions by Size of Easement Many of the water-related restrictions, displayed in Table IV.7 below, occur with about the same frequency regardless of size, which runs contrary to the trend described above for water-related purposes. Examples of this trend include the maintenance of “buffers,” the construction of “water infrastructure,” and the use of “chemicals.” “Manipulation/alteration of water bodies” and “pollution of water bodies” both appeared with greater frequency in smaller WFCEs, mostly in the 1,000 to 5,000 acre size class. No other discernible trends in water-related restrictions occur over size.

Chapter IV – Results and Analysis 108

Table IV.7 Number and percentage of easements that included water-related restrictions by size of property (acres). 10,001– 20,001– 1,000–5,000 5,001-10,000 50,001 and > 20,000 50,000 Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Buffers 34 72.3 6 75.0 9 69.2 6 85.7 3 42.9 BMPs 27 57.4 7 87.5 6 46.2 4 57.1 5 71.4 Manipulation /alteration 32 68.1 3 37.5 6 46.2 4 57.1 2 28.6 of water bodies Maintain quality water 26 55.3 6 75.0 6 46.2 3 42.9 6 85.7 courses Water infrastructure 27 57.4 5 62.5 7 53.8 4 57.1 3 42.9 Erosion 25 53.2 5 62.5 4 30.8 4 71.4 5 71.4 Water rights 9 19.1 1 12.5 1 7.7 1 14.3 2 28.6 Pollution of water 29 61.7 0 0.0 3 23.1 4 57.1 1 14.3 bodies Chemicals 8 17.0 1 12.5 3 23.1 4 57.1 1 14.3 Fertilizers 17 36.2 4 50.0 8 61.5 6 85.7 4 57.1 Steep slope 19 40.4 4 50.0 5 38.5 1 14.3 2 28.6 management

IV.1.4 Technology and Extraction

For purposes of this analysis, technology is defined as the ability of an easement to accommodate new techniques, equipment, or technologies, offer flexibility in this regard, and/or prohibit new technologies easement holders deem contrary to easement goals and purposes. Additionally, extraction is included in this discussion to account for such restrictions as mining and drilling. Relative to other themes such as water, forest management, and ecosystems, technology was dealt with infrequently. Additionally, there were no easement purposes that addressed technology explicitly. Only one purpose, the protection of “exploitable natural resources,” dealt with extraction directly. It is likely that WFCEs deal with technology and extraction so infrequently as purposes because restrictions related to this theme likely support other purposes (such as “preservation of biodiversity”).

Chapter IV – Results and Analysis 109

IV.1.4.a Technology and Extraction: Aggregate Data

Purposes: Aggregate Data There were no easement purposes examined in this study that dealt explicitly with the issue of technology. The de facto purpose used for this section was “restrict development,” as technology often accompanies development or vice versa. For example, the placement of a new wireless communication tower on an eased property would require a limited degree of development, including building or upgrading an access road. This purpose was mentioned in 20.7% of WFCEs. This relatively low frequency likely reflects the fact that restrictions on development often serve other purposes and “restrict development” is often not considered a purpose in itself. “Open-space values,” an example of a purpose achieved by restricting development, was mentioned in 52.4% of WFCEs. Lastly, the protection of “exploitable natural resources” was considered as a purpose in the discussion of technology to account for extraction related activities, such as mining and drilling. It was mentioned as a purpose in 18.3% of WFCEs.

Technology and Extraction Restrictions: Aggregate Data Relatively few easements analyzed in this study contained restrictions that addressed the use of new technologies. As mentioned earlier, this may be because technology is a minor consideration of easement drafters relative to other conservation goals. Restrictions on the citing of “alternative energy generators,” such as wind turbines or solar panels were mentioned in only 14.6% of WFCEs. Restrictions on citing “new communications towers” were found in 40.2% of easements. However, restrictions related to extraction were included in a relatively high percent of easements. For example, 85.4% of easements restricted “mining” and 54.9% restricted “drilling,” which may account to some degree for new forms of related technology, such as slant drilling.

IV.1.4.b Technology and Extraction by Region

Technology and Extraction Purposes by Region While there were not many variations in technology-related purposes regionally, there was one important difference. The Northwest mentioned “open space values” in approximately 91.0% of WFCEs versus approximately 50.0% nationally. This

Chapter IV – Results and Analysis 110 anthropocentric, aesthetically-based purpose may be a regionally accepted norm in public WFCEs in the Northwest where sprawl has garnered considerable attention.

Technology and Extraction Restrictions by Region There were few regional trends in technology-related restrictions. Nationally, WFCEs restrict “mining” 85.4% of the time and “drilling” 54.9% of the time. Northwestern WFCEs restrict “mining” 90.9% of the time and “drilling” 63.6% of the time. Southwestern WFCEs addressed “mining” in 100% of easements and “drilling” in 85.7% of easements (Figure IV.11).

100 M ining 90 Drilling

20 Percent Mentioned in Each Age Category Age Category Each in Mentioned Percent

0 Aggregate Northwest Southwest Geographic Region

Figure IV.11 Percentage of easements that included restrictions related to "mining" and "drilling." Data presented in aggregate (82 easements) and in the Northwest and Southwest regions.

IV.1.4.c Technology and Extraction by Easement Holder

Technology and Extraction Purposes by Easement Holder The occurrence of technology related purposes did not vary by easement holder. “Restrict development” was mentioned in 23.1% of public WFCEs and in 15.8% of private WFCEs. “Open-space values” was mentioned in 50.0% of publicly-held

Chapter IV – Results and Analysis 111 easements and in 55.3% of privately-held easements. The protection of “exploitable natural resources” was mentioned in 15.4% of publicly-held WFCEs and in 21.1% of privately-held WFCEs.

Technology and Extraction Restrictions by Easement Holder Technology related restrictions also appeared with relatively equal frequency in public and private WFCEs, with a few restrictions occurring more often in publicly-held WFCEs. Public WFCEs mention the citing of “alternative energy generators” eight times (20.5%) and private WFCEs four times (10.5%). Publicly-held easements restricted the citing of “new communication towers” with 58.9% frequency, compared to 20.5% among privately-held easements. This finding may reflect a demand of the public that landscapes protected with public funds not be marred by new towers. One issue both public and private holders chose to mention explicitly and specifically was mining. Publicly-held easements restrict mining 82.1% of the time and privately-held WFCEs restrict it 86.8% of the time. “Drilling” was mentioned in 46.2% of publicly-held WFCEs and in 63.2% of privately-held WFCEs. Restrictions on “utilities” were mentioned 35.9% of the time in publicly-held easements and 42.1% of the time in privately-held easements.

IV.1.4.d Technology and Extraction by Age of Easement

Technology and Extraction Purposes by Age of Easement Table IV.8 details the frequency with which technology-related purposes appear in WFCEs over time. It appears that over time WFCEs have mentioned “restrict development” as a purpose with decreasing frequency. This could be because historically easements have been used primarily to restrict development, but the terminology of “open-space values” has been substituted over time. “Exploitable natural resources” showed no trend over time (Figure IV.12).

Chapter IV – Results and Analysis 112

100

90 Open-Space Values 80 Restrict Development

20 Percent Mentioned in Each AgeCategory Each in Mentioned Percent

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Date Signed)

Figure IV.12 Percentage of easements in a given age class (year signed) that included purposes related to "open-space values" and "restrict development."

Table IV.8 Number and percentage of easements that included technology and extraction- related purposes by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

PurposesU IncludedU Restrict development 1 50.0 3 33.3 7 21.2 6 15.8 Open-space values 1 50.0 4 44.4 15 45.5 23 60.1 Exploitable natural 0 0.0 1 11.1 3 9.1 11 28.9 resources

Technology and Extraction Restrictions by Age of Easement Presented in Table IV.9 below are five technology-related restrictions and their inclusion in WFCEs over time. Based on this data, there is no general trend among these restrictions over time, however several of them have experienced a general increase in frequency. It is clear from the data that the citing of “alternative energy generators” is a restriction that has only recently begun to be mentioned in WFCEs. Restrictions on the citing of “new communication towers” have increased between the 1995 to 1999 age

Chapter IV – Results and Analysis 113 class and the 2000 to 2003 age class, which makes sense considering the recent spread of wireless technology. “Mining” restrictions have been mentioned with consistent frequency over all four age classes, ranging from 55.6% to 100%. “Drilling” appears to have increased in frequency over time, as have restrictions on “utilities.”

Table IV.9 Number and percentage of easements that included technology and extraction-related restrictions by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Alternative energy 0 0.0 0 0.0 7 21.2 5 13.2 generators New communications 0 0.0 3 33.3 11 33.3 19 50.0 towers Mining 2 100 5 55.6 28 84.8 35 92.1 Drilling 0 0.0 3 33.3 18 54.5 24 63.2 Utilities 0 0.0 2 22.2 12 36.4 16 42.1

IV.1.4.e Technology and Extraction by Size of Easement

Technology and Extraction Purposes by Size of Easement Table IV.10 below shows technology-related purposes and the frequency in which these purposes occur in WFCEs across size classes. No discernible trend in the occurrence of these three purposes is apparent from these data.

Table IV.10 Number and percentage of easements that included technology and extraction-related purposes by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

PurposesU IncludedU Restrict development 8 17.0 2 25.0 2 15.4 3 42.9 2 28.6 Open-space values 22 46.8 7 87.5 8 61.5 3 42.9 3 42.9 Exploitable natural 7 14.9 2 25.0 2 15.4 2 28.6 2 28.6 resources

Technology and Extraction Restrictions by Size of Easement Of all the technology and extraction-related restrictions listed in Table IV.11 below, “mining” is the only restriction that was mentioned with high relative frequency in all size classes. None of the other restrictions appear to show trends over size.

Chapter IV – Results and Analysis 114

Table IV.11 Number and percentage of easements that included technology and extraction-related restrictions by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 47 100.0 8 100.0

RestrictionsU IncludedU Alternative energy 6 12.8 1 12.5 1 7.7 2 28.6 2 28.6 generators New communications 14 29.8 6 75.0 6 46.2 4 57.1 3 42.9 towers Mining 28 59.6 6 75.0 5 38.5 3 42.9 3 42.9 Drilling 40 85.1 8 100.0 10 76.9 6 85.7 6 85.7 Utilities 18 38.3 2 25.0 3 23.1 3 42.9 4 57.1

IV.1.5 Development

Not surprisingly, restricting development emerged as a dominant theme in WFCEs. A majority of the 82 WFCEs analyzed for this study included restrictions aimed directly at controlling and limiting development. Relatively few easements specifically identified “restriction of development” as a purpose. This is not surprising as restrictions on development often serve to support purposes included in other themes, such as preservation of “biodiversity” and “water quality.” “Open space values,” a purpose that implicitly suggests a restriction on development, was used with a meaningful frequency.

IV.1.5.a Development: Aggregate Data

Development Purposes: Aggregate Data As mentioned in the previous section, “restrict development” was mentioned as a purpose in 20.7% of WFCEs studied. Again, one can assume that because the primary purpose of WFCEs is forest management and conservation, and because restricting development often serves these purposes, an explicit purpose of “restricting development” was not mentioned frequently. Protection of “open-space values” was mentioned as a purpose in 52.4% of easements. This purpose, which is human-centered and aesthetics-based, could capture development restrictions.

Development Restrictions: Aggregate Data Six restrictions were identified that dealt directly with the theme of development. These were the construction and maintenance of “roads,” the construction of “water

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infrastructure,” the locating of “utilities,” the construction of “buildings,” “commercial/industrial development,” and “residential development.” Of these six, four were mentioned with very high frequency in the total sample of 82 easements. The frequency of these four restrictions were “roads” (90.2%), “buildings” (71.9%), “commercial/industrial development” (81.7%), and “residential development” (85.4%). In addition to restricting items such as roads for development-related purposes, development may also be seen as a threat to other easement purposes. For example, the construction of new roadways contributes to habitat fragmentation and would likely run contrary to such purposes as protecting habitat and other ecosystem health related purposes. These restrictions likely appeared with such frequency because of the obvious threat they represent to a multitude of purposes, such as preserving open space, ecosystem health or water quality. These restrictions are also easily monitored, which may add to the high rates of inclusion. It is therefore no surprise that these restrictions are the most long-standing and conventional restrictions in traditional conservation easements (Barrett and Nagel 1996).

The frequency with which easements that restrict both commercial/industrial and residential development was nearly equal, 81.7% and 85.4% respectively. Easements therefore did not restrict one type of development more rigorously than another. This conclusion is further strengthened by the restriction on buildings in general, which was mentioned in 71.9% of the WFCEs. Therefore, despite the fact that few WFCEs explicitly mention restriction of development as a purpose, most easements contain restrictions on such development.

IV.1.5.b Development by Region

Development Purposes by Region The development-related purpose “open-space values,” mentioned in 52.4% of easements nationally, was found to be present with much higher frequency in the Northwest and Southwest when compared to other regions of the country. WFCEs in the Northwest mentioned this purpose 100% of the time while WFCEs in the Southwest mentioned it

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85.7% of the time. This purpose was mentioned in 41.1% of Northeastern easements (Figure IV.13).

100

50 N=10 N=6 40

30 N=43 N=3 20 N=23 Percent Mentioned in Each Age Category Each in Mentioned Percent 10

0 Aggregate Northeast Southeast Northwest Southwest Geographic Region (East v. West Comparison)

Figure IV.13 Percentage and number (N) of easements that included the purpose of protecting "open-space values" in aggregate (82 easements) and by region.

As mentioned previously, the high level of attention to sprawl in these regions may be driving these observations. Also, due to the greater amount of public land in the American West and the concurrent opportunities for public access and recreation, easements may be used more often to protect aesthetics and other “open-space values.” No trends were found among development-related restrictions.

IV.1.5.c Development by Easement Holder

Development Purposes by Easement Holder The purpose “restrict development” appeared in 23.1% of public WFCEs and in 15.8% of private WFCEs. However, the corollary purpose “open-space values” can be found in 50.0% of publicly-held easements and in 55.3% of privately-held easements. While there

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is no difference in the frequency with which these two purposes are mentioned by either public or private holders, “open-space values” is clearly most often mentioned.

Development Restrictions by Easement Holder Table IV.12 below shows the frequency of development-related restrictions for publicly and privately-held WFCEs. There was no difference in the frequency of development related restrictions between publicly- and privately-held easements. The largest difference in restrictions between the two types of easement holders although there was a higher rate of inclusion for “water infrastructure” in privately-held easements. This finding is consistent with the tendency for private organizations to include restrictions related to water with a higher frequency (see water section above).

Table IV.12 Number and percentage of easements that included development-related restrictions by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Roads 35 89.7 34 89.5 Water infrastructure 19 48.7 24 63.2 Utilities 14 35.9 16 42.1 Buildings 27 69.2 28 73.7 Commercial/industrial 30 76.9 33 86.8 development Residential development 34 87.2 32 84.2

IV.1.5.d Development by Age of Easement

Development Purposes by Age of Easement Table IV.13 below shows purposes related to development in the four age classes of WFCEs over time. The purpose “restrict development” has steadily decreased in frequency over time. “Open-space values” has increased over the most recent time classes. These two observations could signal a trend in substituting “open space values” for “restrict development” in purpose language over time. This trend also shows that the purpose of preserving ”open space values,” has retained its importance in WFCEs since this conservation tool’s inception in the mid-1980s.

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Table IV.13 Number and percentage of easements that included development-related purposes by easement age (year signed).

1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

PurposesU IncludedU Restrict development 1 50.0 3 33.3 7 21.2 6 15.8 Open space values 1 50.0 4 44.4 15 45.5 24 63.2

Development Restrictions by Age of Easement Although the inclusion of “restrict development” as a purpose has declined over time, restrictions aimed at accomplishing this purpose have generally increased over the four age classes. (Table IV.14) Restrictions on the construction and maintenance of roads have appeared increasingly over time and were found to occur in 94.7% of easements in the 2000 to 2003 age class. As roadway construction is a leading cause of forest and habitat fragmentation, this finding is important. While the inclusion of “water infrastructure” restrictions shows no discernible trend over time, “utilities” restrictions did experience a slight increase in frequency over time. Restrictions on constructing “buildings” on eased property were relatively high in the first three age classes and experienced declines in WFCEs in the 1995 to 1999 and 2000 to 2003 age classes (Figure IV.14).

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Roads Commercial/Industrial Development Residential Development

100

20 Percent Mentioned in Each AgeCategory Each in Mentioned Percent 10

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Year Signed)

Figure IV.14 Percentage of easements in each age class (year signed) that included restrictions related to "roads," "commercial/industrial development," and "residential development."

This apparent decline in a restriction on development may actually represent a shift in easement language from “buildings” per se to restricting commercial and industrial development, which both exhibit increases following the second time period.

With the exclusion of the two easements in the 1985 to 1989 age class, the data reflects an overall increase in restrictions on both commercial/industrial and residential development over time. Between age classes three and four commercial/industrial development experiences a negligible decline of 3.7%. Restrictions on these types of development appeared in nearly every WFCE drafted between 2000 and 2003. This finding is critical since WFCEs do not restrict one type of development in favor of another. Additionally, these restrictions have become the norm in current WFCEs and further strengthen the goals of landscape scale forest conservation by limiting pernicious activities on the property.

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Table IV.14 Number and percentage of easements that included development-related restrictions by easement age (year signed).

1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Roads 2 100.0 7 77.8 29 87.9 36 94.7 Water infrastructure 1 50.0 3 33.3 14 42.4 25 65.8 Utilities 0 0.0 2 22.2 12 36.4 16 42.1 Buildings 2 100.0 8 88.9 25 75.8 24 63.2 Commercial/industrial 2 100.0 4 44.4 29 87.9 32 84.2 development Residential 2 100.0 5 55.6 29 87.9 34 89.5 development

IV.1.5.e Development by Size of Easement

Development Purposes by Size of Easement Table IV.15 shows the two development-related purposes as they occur in WFCEs of increasing size. The data shows no discernible trends with respect to size.

Table IV.15 Number and percentage of easements that included development-related purposes by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

PurposesU IncludedU Restrict development 8 17.0 2 25.0 2 15.4 3 42.9 2 28.6 Open space values 22 46.8 7 87.5 8 61.5 3 42.9 3 42.9

Development Restrictions by Size of Easement While restricting development is not often mentioned as a purpose in WFCEs, easement restrictions that accomplish this purpose were also used as tools to achieve other goals (Table IV.16). Restrictions on “roads” were prevalent in all five size classes, with the greatest frequency occurring in the 50,001 acres and greater size class. This seems logical because on larger properties there may be more need for skid trails, logging roads, and access roads in comparison to smaller properties. Most WFCEs also restricted “buildings,” with the 20,001 to 50,000 acres and the 50,001 acres and greater size classes addressing this issue most frequently. Almost all easements, regardless of size, referred to restricting residential development and commercial/industrial development specifically.

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Table IV.16 Number and percentage of easements that included development-related restrictions by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Roads 42 89.4 7 87.5 12 92.3 6 85.7 7 100.0 Water infrastructure 27 57.4 5 62.5 7 53.8 4 57.1 3 42.9 Utilities 18 38.3 2 25.0 3 23.1 3 42.9 4 57.1 Buildings 35 74.5 5 62.5 8 61.5 6 85.7 5 71.4 Commercial/industrial 39 82.9 6 75.0 9 69.2 7 100.0 6 85.7 development Residential 40 85.1 7 87.5 11 84.6 7 100.0 5 71.4 development

IV.1.6 Forest Management

Timber harvest and forest management are very often the centerpiece of working forest conservation easements, as implied by the name. More purposes and restrictions are dealt with in this theme than in any other, signaling its importance. As can be seen in the following section, this large base of purposes and restrictions has allowed for the drafting of different forest management language in WFCEs, as determined appropriate by geography, size, and other factors.

IV.1.6.a Forest Management: Aggregate Data

Forest Management Purposes: Aggregate Data The primary forestry-related purpose examined in this study, the protection of “silvicultural resources,” was addressed in 74.4% of the working forest conservation easements analyzed. This finding reflects the nature of these easements. However, since forest management is a primary purpose of these easements, one might question why one- quarter of the WFCEs studied did not identify the quality, protection, and/or management of silvicultural resources as a purpose. The protection of “exploitable natural resources,” was mentioned much less frequently, in 18.3% of WFCEs.

In the study, the protection of “ecosystem health” and “economic viability” exist as groups of purposes that encompass several easement purposes that represent the respective category heading. Examined collectively, the data shows that these two

Chapter IV – Results and Analysis 122 groups of purposes appeared in WFCEs with similar frequency. One can conclude then, that easement drafters do not view these types of purposes as contradictory but rather as two goals that can and must coexist.

Forest Management Restrictions: Aggregate Data Fifty-one forest management restrictions appeared in the 82 WFCEs. In order to make the analysis more manageable, 24 of the most prevalent restrictions were broken down into three sub-categories: (1) plans, oversight, and logistical considerations, (2) management objectives and standards, and (3) ecological restrictions. Separate tables that detail each individual restriction within these three subcategories can be found in the discussions of easement holder, age, and size. The following two paragraphs detail a number of individual restrictions that displayed interesting trends in the aggregate.

“Best management practices” appeared in 58.5% of easements and a total of 78 individual BMPs were counted. On average then, each WFCE that mentioned “BMPs” referenced more than one BMP. ”Forest management plans (FMPs)” were required by 75.6% of easements. This finding gives credence to the literature, which states that a separate management plan is the most effective way of managing timber resources on (Boelhower 1995; Lind 2001b).

While these FMPs may deal with specific goals of forest management, these goals are not mentioned explicitly in the easements with any frequency. For example, “long-term objectives and management goals” was only mentioned in 20.1% of WFCEs. “Timber harvest goals and standards” appeared in 36.6% of WFCEs. Specific timber restrictions (such as DBH specifications or clear-cutting) were not frequently included in easement language (typically in 30% or fewer of easements). However, many specific restrictions of this nature are usually found in the FMP, not in the body of the easement itself, thus explaining, at least in part, this low frequency of inclusion.

Many traditional forestry restrictions were mentioned with relatively high frequency in the 82 easements studied. For example, the maintenance of “buffers” was addressed in

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70.1% of easements and “roads and skid trails” were restricted in 73.2% of easements. These forest management practices are included in most easements probably due to potential impact, relative ease of monitoring, and their wide-scale acceptance as sound practices.

Also of note are the relatively few times easements mention or stipulate “sustainable forestry” (36.6% of easements). This could mean that timber harvest practices detailed in WFCEs may not be drafted with sustainability in mind. Inclusion of requirements for sustainable forestry practices could be an area of improvement for easement drafters and FMP preparers.

IV.1.6.b Forest Management by Region

Forest Management Restrictions by Region No regional trends were found among forest management-related purposes. However, several regional trends were found among forest management restrictions. The only region to show relative uniformity of language as it pertained to management goals and standards was the Southwest. This region referred to “timber harvest goals and standards” 85.7%. This restriction appeared in 36.6% of easements nationally. The ecological restriction “maintain wildlife habitat” also appeared in 85.7% of Southwestern WFCEs, or six of seven easements, compared to 51.2% of the aggregate sample.

The restriction detailing the creation of “special management areas,” which appeared in 19.5% of easements nationally, were found to occur more frequently in the Northeast (21.4%) and Northwest (27.3%). The setting aside of fragile or important tracts with different management requirements could be a trend being established in these two areas that has not yet been adopted in other regions.

IV.1.6.c Forest Management by Easement Holder

Forest Management Purposes by Easement Holder Table IV.17 below displays the frequency with which forest management-related purposes appear in publicly and privately-held easements. It should come as no surprise

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that the protection of “silvicultural resources” was found in both publicly- and privately- held easements with great frequency, as this purpose is usually a primary reason for conservation organizations and landowners to enter into a WFCE. The most notable difference in forest management-related purposes between holder type is that “economic viability” is mentioned with a higher frequency in publicly-held easements and “ecosystem health” is mentioned with a higher frequency in privately-held easements.

Table IV.17 Number and percentage of easements that included forest management-related purposes by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

PurposesU IncludedU Economic viability 33 84.6 29 76.3 Ecosystem health 32 82.1 36 94.7 Silvicultural resources 28 71.8 28 73.7 Exploitable natural resources 6 15.4 8 21.1

Forest Management Restrictions by Easement Holder An examination of the sundry forest management-related restrictions present in the 82 WFCEs analyzed reveals one primary conclusion, that there is very little uniformity in language both between holders and within holders. This may be due to the fact that many forest management restrictions are site based. Table IV.18 below shows restrictions for specific components of planning for forest management activities. Both public and private WFCEs rarely require and/or detail the format of a “Baseline Assessment Report” in the easement. This could be in part due to the fact that some WFCEs require and detail the Baseline Assessment Report in the FMP and not in the body of the easement. The numbers are similarly low for requiring an “annual meeting” between the landowner and easement holder to discuss the property.

The literature states that the preparation of a separate FMP is the best way to deal with management activities on the property. The easements studied reflect this statement, since 66.7% of publicly-held easements stipulate a separate “FMP,” as do 81.6% of privately-held easements. While current literature also states that preparation and certification of forest management plans by a professional forester is the industry standard, the easements studied do not reflect this statement. It is interesting that even

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with the public financing of publicly-held WFCEs and the accompanying increase in accountability, only 35.9% of publicly-held easements require a professional forester to prepare and/or certify plans, compared to 50.0% of privately-held easements. The relatively low frequencies for requiring preparation by a professional forester for both holders are of concern. Also of note is the difference in requiring approval of a forest management plan. Thirty percent of public WFCEs require approval of the “FMP” by the easement holder compared to 50.0% of private WFCEs. This difference in requiring approval could be due to the amount of time and resources necessary to review and approve FMPs on an ongoing basis.

Table IV.18 Number and percentage of easements that included forest management restrictions related to plans, oversight, and logistical considerations by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Baseline assessment 12 30.8 9 23.7 Annual meeting 8 20.5 8 21.1 Forest management plan 26 66.7 31 81.6 Professional forester 14 35.9 19 50.0 Approval of plan 12 30.8 19 50.0

Table IV.19 below details restrictions related to management objectives and standards. Many of these restrictions appear to be interchangeable. Additionally, it seems that publicly-held easements prefer certain language, namely “timber harvest goals and standards” and “sound or generally accepted practices.” Both sets of holders mentioned the use of “BMPs” with about the same frequency. Taking into account these differences, the frequency with which goal specific restrictions appeared in both public and private WFCEs was relatively low.

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Table IV.19 Number and percentage of easements that included forest management restrictions related to management objectives and standards by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Consistent with goals of easement 11 28.2 9 23.7 Long-term objectives and management 4 10.3 11 28.9 goals Timber harvest goals and standards 12 30.8 16 42.1 Sound/generally accepted practices 16 41.0 4 10.5 Review restrictions after designated 5 12.8 9 23.7 time period Best management practices (BMPs) 23 58.9 20 52.6

Table IV.20 below shows ecological restrictions for forest management activities. The restriction appearing most frequently in both publicly and privately-held easements was the maintenance of “buffers,” appearing 74.4% of the time in public WFCEs and 65.8% of the time in private WFCEs. The most disparate result of this group is the restriction mandating that WFCEs “maintain wildlife habitat,” which appears in 35.9% of public easements and 65.8% of private easements. “Special management areas” were not used with particularly high frequency by either group of easement holders, but appeared in twice as many privately-held WFCEs as publicly-held WFCEs. “Roads and skid trails” were restricted more often by public holders.

The remaining six restrictions refer to specific management activities or timber harvest restrictions. At first glance, these restrictions appear to occur infrequently, which could be cause for concern. However, many specific restrictions of this nature are usually found in the FMP, not in the body of the easement itself, thus explaining, at least in part, this discrepancy. While there are some differences between public and private holders in specific restrictions, there was not a consistent trend. The most notable difference was that private organizations included “forest diversity” with twice the frequency of public organizations and public organizations were more likely to include “forest restorations.”

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Table IV.20 Number and percentage of easements that included restrictions related to ecological forest management by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Buffers 29 74.4 25 65.8 Steep slope management 13 33.3 14 36.8 Maintain wildlife habitat 14 35.9 25 65.8 Protection of biodiversity 6 15.4 10 26.3 Special management areas 5 12.8 10 26.3 (SMA) Roads and skid trails 31 79.5 24 63.2 Forest diversity 6 15.4 14 36.8 Forest restorations 19 48.7 11 28.9 Maintain downed materials 6 15.4 7 18.4 Sustainable forestry 11 28.2 15 39.5 DBH specification 10 25.6 8 21.1 Clear-cutting 14 35.9 11 28.9

IV.1.6.d Forest Management by Age of Easement

Forest Management Purposes by Age of Easement “Silvicultural resources,” mentioned with very high frequency in the 1990 to 1994 and 1995 to 1999 age classes, experienced a decline between the 1995 to 1999 age class and the 2000 to 2003 age class (Table IV.21). This may be explained by the use of more general terminology such as ecosystem health and protection of habitat, both of which imply protection of silvicultural resources. An alternative explanation could be that easement drafters see this purpose as a given. According to the findings of Brenda Lind (2001b) this is a practice which should be avoided and all easement purposes should be explicitly stated. Also, the protection of “exploitable natural resources,” mentioned with very little frequency over time, increased most dramatically between age classes three and four, the same time period that “silvicultural resources” declined.

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Table IV.21 Number and percentage of easements that included forest management-related purposes by age of easement (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

PurposesU IncludedU Silvicultural resources 0 0.0 8 88.9 29 87.9 24 63.2 Exploitable natural 0 0.0 1 11.1 3 9.1 11 28.9 resources Ecosystem health 1 50.0 6 66.7 29 87.9 31 81.6 Economic viability 0 0.0 8 88.9 30 90.9 29 76.3

Forest Management Restrictions by Age of Easement Table IV.22 below displays a variety of logistical forest management restrictions and their frequency over time. Many of these restrictions, including “baseline assessment,” “Forest management plan,” and the use of a “professional forester” are recommended by a preponderance of the literature as functional ways to improve resource management on WFCEs (Figure IV.15). These three restrictions have all increased in frequency over time. This is an important finding because it seems that WFCEs have been heeding the advice of researchers.

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80 Baseline Assessment Professional Forester 70 Forest Management Plan

20 Percent Mentioned Category in Age Percent Each 10

0 1990-1994 1995-1999 2000-2003 Easement Age (Date Signed)

Figure IV.15 Percentage of easements in each age class (year signed) that included forest management restrictions related to "baseline assessment," "professional forester," and "forest management plan." First age class (1985-1989) was not included in the graph due to limited data.

Table IV.22 Number and percentage of easements that included forest management restrictions related to plans, oversight, and logistical considerations by age of easement (year signed).

1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Baseline assessment 2 100 1 11.1 5 15.2 14 36.8 Annual meeting 0 0.0 0 0.0 6 18.2 12 31.6 Forest management plan 1 50.0 3 33.3 26 78.8 32 84.2 Professional forester 0 0.0 1 11.1 12 36.4 22 57.9 Approval of plan 0 0.0 2 22.2 15 45.5 16 42.1

Table IV.23 shows the frequency of several different goal-oriented forest management restrictions over time. Overall, it appears that this type of language did not appear in WFCEs until about 1995. These management specific and goal-oriented restrictions have not increased very much over time. However, it is evident that easements employ a

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variety of this type of restriction and use different language. It is therefore possible that a majority of easements contain some form of this language. The one notable exception to this trend is the inclusion of “BMPs,” which have experienced a pronounced increased in frequency over time (Figure IV.16).

The data on the frequency of inclusion of ecological forest management restrictions over time clearly show the evolution of forest science and management. While many long- standing forest management restrictions, namely the requirement of “buffers” and restrictions on “roads and skid trails” appeared with relatively high frequency in the 1985 to 1989, 1990 to 1994, and 1995 to 1999 age classes, other more progressive restrictions begin to appear in WFCEs in the most recent age classes. For example, the requirement to “maintain wildlife habitat” was not mentioned in the 1985 to 1989 age class, mentioned in only one easement in the 1990 to 1994 age class, and then appears in 42.4% of WFCEs in the 1995 to 1999 age class and 71.1% in the 2000 to 2003 age class. “Sustainable forestry practices” experienced a marked increase over time, especially between the 1995 to 1999 age class and the 2000 to 2003 age class (Figure IV.16).

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M aintain Wildlife Habitat 70 BM Ps Sustainable Forestry Practices 60

20 Percent Mentioned in Each Age Category 10

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Year Signed)

Figure IV.16 Percentage of easements in each age class (year signed) that included restrictions related to "maintaining wildlife habitat," "BMPs," and "sustainable forestry practices."

Table IV.23 Number and percentage of easements that included forest management restrictions related to management objectives and standards by age of easement (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Consistent with goals of 0 0.0 0 0.0 8 24.2 14 36.8 easement Long-term objectives and 0 0.0 1 11.1 7 21.2 9 23.7 management goals Timber harvest goals and 0 0.0 2 22.2 15 45.5 13 34.2 standards Sound/ generally accepted 0 0.0 0 0.0 12 36.4 10 26.3 practices Review restrictions after 0 0.0 0 0.0 8 24.2 7 18.4 designated time period Best management 0 0.0 3 33.3 18 54.5 27 71.1 practices (BMPs)

“Native plant and animal management practices” did not appear at all until the 1995 to 1999 age class and then experienced an increase in frequency between that age class and the 2000 to 2003 age class. Other examples can be found in Table IV.24 below.

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Table IV.24 Number and percentage of easements that included restrictions related to ecological forest management by age of easement (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Buffers 0 0.0 6 66.7 27 81.8 25 65.8 Steep slope management 0 0.0 2 22.2 13 39.4 16 42.1 Maintain wildlife habitat 0 0.0 1 11.1 14 42.4 27 71.1 Protection of biodiversity 0 0.0 1 11.1 3 9.1 12 31.6 Special management areas 0 0.0 1 11.1 8 24.2 7 18.4 (SMAs) Roads and skid trails 0 0.0 7 77.8 23 69.7 30 78.9 Forest diversity 0 0.0 1 11.1 8 24.2 14 36.8 Forest restorations 2 100.0 2 22.2 10 30.3 16 42.1 Maintain downed 0 0.0 0 0.0 5 15.2 10 26.3 materials Sustainable forestry 0 0.0 2 22.2 8 24.2 20 52.6 practices Clear-cutting 0 0.0 4 44.4 11 33.3 12 31.6 Native plant and animal 0 0.0 0 0.0 12 36.4 17 44.7 management practices

IV.1.6.e Forest Management by Size of Easement

Forest Management Purposes by Size of Easement The protection of “silvicultural resources” is mentioned equally across the five size classes. Clearly then, WFCEs in all size categories value the quality of silvicultural resources and address protection and management in the purposes section of the WFCE. The protection of “exploitable natural resources” displayed no trend with regard to size. As mentioned above, “ecosystem health” and “economic viability” refer to groups of purposes in WFCEs. Both of these groups of purposes are mentioned with near equal frequency over all five size classes. This finding suggests that these two easement goals coexist in WFCEs in each of the five size classes examined (Table IV.25).

Table IV.25 Number and percentage of easements that included purposes related to forest management by size of property (acres).

1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

PurposesU IncludedU Silvicultural resources 32 68.1 6 75.0 11 84.6 5 71.4 7 100.0 Exploitable natural 7 14.9 2 25.0 2 15.4 2 28.6 2 28.6 resources Ecosystem health 37 78.7 7 87.5 11 84.6 6 85.7 6 85.7 Economic viability 37 78.7 7 87.5 11 84.6 5 71.4 7 100.0

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Forest Management Restrictions by Size of Easement In Table IV.26 below, the frequency of several logistical and management-plan related forest management restrictions are displayed across size classes. While “baseline assessment” showed no trend with regard to size, “annual meetings” were most often mentioned in the 20,001 to 50,000 acres and the 50,001 acres and greater size classes. It makes sense that the larger an easement property, the more extensive management activities will be and the more comprehensive the monitoring will need to be, thus necessitating an annual meeting. “FMPs” are required with relatively high frequency for all five size classes. It is not surprising that the 20,001 to 50,000 acres and the 50,001 acres and greater size classes require them with greater average frequency, as larger WFCEs will, logically, be managed by a FMP more often than not. This same trend is true for “professional forester supervision.” Larger WFCEs will tend to need professional expertise for management of the timber resource more so than smaller easements and are also more likely to have the necessary resources or economies of scale.

Table IV.26 Number and percentage of easements that included forest management restrictions related to plans, oversight, and logistical considerations by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Baseline assessment 10 21.3 3 37.5 2 15.4 3 42.9 4 57.1 Annual meeting 4 8.5 2 25.0 2 15.4 4 57.1 6 85.7 Forest management plan 35 74.5 7 87.5 8 61.5 7 100.0 5 71.4 Professional forester 17 36.2 3 37.5 5 38.5 4 57.1 6 85.7 Approval of plan 22 46.8 3 37.5 3 23.1 3 42.9 2 28.6

Table IV.27 below shows many forest management objectives relative to the size of the easement property. Mirroring the trend for these same restrictions over time, there appears to be no uniformity in language dealing with management objectives. Additionally, none of these restrictions show any considerable increase or decrease in frequency with regard to size. The one exception to this was found for “BMPs,” which was mentioned relatively consistently in WFCEs of all five size classes.

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Table IV.27 Number and percentage of easements that included restrictions related to forest management objectives and standards by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Consistent with goals of 11 23.4 2 25.0 3 23.1 4 57.1 2 28.6 easement Long-term objectives 8 17.0 1 12.5 3 23.1 2 28.6 3 42.9 and management goals Timber harvest goals and 17 36.2 3 37.5 6 46.2 1 14.3 3 42.9 standards Sound/ generally 8 17.0 4 50.0 3 23.1 4 57.1 3 42.9 accepted practices Review restrictions after 7 14.9 0 0.0 3 23.1 3 42.9 2 28.6 designated time period Best management 26 55.3 7 87.5 6 46.2 4 57.1 5 71.4 practices (BMPs)

Table IV.28 shows many specific forest management restrictions. The inclusion of “buffers” remained relatively constant in frequency with regard to size. The decrease between the 20,001 to 50,000 acres size class and the 50,001 acres and greater size class is likely not important because each size class only dealt with seven easements each. “Steep slope management” decreased steadily in frequency from the 5,001 to 10,000 acres size class to the 50,001 acres and greater size class. Several of the other restrictions experienced marginal increases in frequency over time, including “protection of biodiversity,” SMAs,” forest diversity,” forest restorations,” and “native plant and animal management practices.” “Sustainable forestry practices” experienced a spike between the 20,001 to 50,000 acres size class and the 50,001 acres and greater size class, indicating that emphasis on this type of timber harvest is more prevalent on the largest easement properties. The two largest size classes were twice as likely to restrict clear-cutting as were the two smallest classes.

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Table IV.28 Number and percentage of easements that included forest management-related restrictions by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Buffers 34 72.3 6 75.0 9 69.2 6 85.7 3 42.9 Steep slope management 19 40.4 4 50.0 5 38.5 1 14.3 2 28.6 Maintain wildlife habitat 21 44.7 5 62.5 5 38.5 5 71.4 6 85.7 Protection of biodiversity 5 10.6 2 25.0 4 30.8 2 28.6 3 42.9 Special management areas 8 17.0 2 25.0 2 15.4 2 28.6 2 28.6 (SMAs) Roads and skid trails 33 70.2 7 87.5 8 61.5 6 85.7 6 85.7 Forest diversity 10 21.3 3 37.5 2 15.4 3 42.9 5 71.4 Forest restorations 16 34.0 3 37.5 4 30.8 2 28.6 5 71.4 Maintain downed 12 25.5 1 12.5 1 7.7 0 0.0 1 14.3 materials Sustainable forestry 16 34.0 4 50.0 4 30.8 1 14.3 5 71.4 practices Clear-cutting 12 25.5 2 25.0 5 38.5 4 57.1 4 57.1 Native plant and animal 15 31.9 2 25.0 4 30.8 4 57.1 4 57.1 management practices

IV.1.7 Ecosystem and Rare Species

At the scale dealt with in this study, 1,000 acres and greater, many easement purposes and restrictions deal with landscape and ecosystem-level management and conservation. Also discussed in this section are any provisions included in easements that detailed the protection and/or management of rare species, fragile habitat, or other imperiled ecosystem components.

IV.1.7.a Ecosystems and Rare Species: Aggregate Data

Ecosystems and Rare Species Purposes: Aggregate Data Five purposes were identified that addressed ecosystem conservation and management or rare species and habitat: “habitat for terrestrial and aquatic wildlife,” “water quality,” “shoreline/riparian integrity,” “rare species,” and “fragile/imperiled habitat.” The purpose mentioned most often was the protection of “habitat for terrestrial and aquatic wildlife,” which appeared in 63 of 82 WFCEs, or 76.8% of the time. Protection of “rare species” was addressed as a purpose far less often, as it appeared 32.9% of the time. The protection of “fragile and imperiled habitat” appeared in only 8.5% of WFCEs.

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Ecosystems and Rare Species Restrictions: Aggregate Data A total of 15 easement restrictions were identified as dealing with ecosystem protection or rare species and fragile habitat management. Separate tables that detail each individual restriction can be found in the discussions of easement holder, age, and size. The following paragraphs detail a number of individual restrictions that displayed interesting trends in the aggregate.

Many ecosystem-related restrictions were mentioned with relatively high frequency in the national sample of 82 easements. Restrictions on the construction and maintenance of “roads” appeared in 90.2% of WFCEs, while the “manipulation of water bodies” was restricted in 57.3% of easements. The location of “buffers” was mentioned 70.7% of the time. Restricting roads is an obvious way to deter forest and habitat fragmentation, therefore providing some level of ecosystem protection. Stipulating buffers around water bodies protects aquatic habitat and riparian areas, both of which are crucial to ecosystem- level protection.

Restrictions mentioned particularly infrequently include prohibitions on “genetically modified organisms” (7.3%), “introduction of non-native species” (29.3%), and requirements for “ecological restoration” (17.1%). These restrictions were not mentioned frequently most likely due to their relative infancy, which will be explored in the discussion of age. A number of forest management specific restrictions deal with diversity at some level. They include: the “protection of biodiversity,” the “maintenance diversity of stand age,” and the protection of “forest diversity.” They were all mentioned relatively infrequently, but their existence in easements signals that easement drafters are concerned with diversity.

IV.1.7.b Ecosystems and Rare Species by Region

Ecosystems and Rare Species Purposes by Region Most of the regional trends related to ecosystem purposes, namely the protection of “water quality” and “shoreline/riparian integrity” were presented in the discussion of the water theme. Protection of “rare species” was addressed as a purpose in 32.9% of

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easements nationally, with no great variation in frequency by region. The same was true for “fragile/imperiled habitat.”

Ecosystems and Rare Species Restrictions by Region Two restrictions in particular, the “introduction of non-native species” and the practice of “ecological restoration,” mentioned nationally 29.3% and 17.1% respectively, experienced regional trends. Northeast WFCEs tended to mention these restrictions with less frequency, having addressed non-native species 12.5% of the time and ecological restoration 8.9% of the time. So, while in most cases the Northeastern easements drive the trends in national data, they seem to run contrary to the data for these restrictions. This is because these two restrictions appeared infrequently enough, 24 and 14 times respectively, to allow a smaller region to drive the national trend. As such, Southwestern easements mentioned these two restrictions with considerably more frequency. That region’s WFCEs addressed non-native species 71.4% of the time and ecological restoration 57.1% of the time.

IV.1.7.c Ecosystems and Rare Species by Easement Holder

Ecosystems and Rare Species Purposes by Easement Holder For all purposes except the protection of “fragile/imperiled habitat,” which could be considered negligible because of the infrequency with which it appeared, privately-held WFCEs addressed ecosystem and rare species-related purposes more often than did publicly-held WFCEs (Table IV.29). The protection of “habitat for terrestrial and aquatic wildlife” was the most frequently mentioned ecosystem-related purpose, for both public and private holders. Public holders addressed this purpose in 69.2% of WFCEs and private holders addressed it in 81.6% of WFCEs.

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Table IV.29 Number and percentage of easements that included recreation and public access-related restrictions by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

PurposesU IncludedU Habitat for terrestrial and aquatic 27 69.2 31 81.6 wildlife Water quality 16 41.0 20 52.6 Shoreline/riparian integrity 13 33.3 10 26.3 Rare species 9 23.1 15 39.5 Fragile/imperiled habitat 5 12.8 2 5.3

Ecosystems and Rare Species Restrictions by Easement Holder The many easement restrictions that deal with protecting ecosystems and rare species are found below in Table IV.30. With the exception of “ecological restorations” and the use of “fertilizers,” these restrictions were included with a higher (or similar) frequency in privately-held easements compared to publicly-held easements. This result may be due to the fact that the missions of many private conservation organizations are directly related to ecosystem health.

No restriction dealt directly with rare species or fragile/imperiled habitat. Two that dealt with it indirectly were the use of native plant and animal management practices,” mentioned in 35.9% of publicly-held WFCEs and in 36.8% of privately-held WFCEs and the “maintenance wildlife habitat,” mentioned in 35.9% of publicly-held WFCEs and in 65.8% of privately-held WFCEs.

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Table IV.30 Number and percentage of easements that included ecosystem and rare species-related restrictions by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Water infrastructure 19 48.7 24 63.2 Manipulation/alteration of 17 43.6 26 68.4 water bodies Pollution of water bodies 13 33.3 22 57.9 Buffers 29 74.4 25 65.8 Genetically modified 0 0.0 3 7.9 organisms (GMOs) Introduction of non-native 8 20.5 14 36.8 species Ecological restoration 10 25.6 4 10.5 Best management practices 23 58.9 20 52.6 (BMPs) Roads 35 89.7 34 89.5 Protection of biodiversity 6 15.4 10 26.3 Maintain diversity of stand age 5 12.8 7 18.4 Forest diversity 6 15.4 14 36.8 Native plant and animal 14 35.9 14 36.8 management practices Maintain wildlife habitat 14 35.9 25 65.8

IV.1.7.d Ecosystems and Rare Species by Age of Easement

Ecosystems and Rare Species Purposes by Age of Easement Table IV.31 below shows WFCE purposes related to protecting ecosystems and rare species over time. The data shows that WFCEs have protected “habitat for terrestrial and aquatic wildlife” with increasing frequency, going from 0% in the 1985 to 1989 age class to 81.6% in the 2000 to 2003 age class. The protection of both “water quality” and “shoreline/riparian integrity” have experienced the same increase in frequency over time. Protection of “rare species” experienced a considerable jump in frequency between the 1990 to 1994 age classes and the 1995 to 1999 age class, and increased again in the 2000 to 2003 age class (Figure IV.17).

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80 Shoreline/Riparian Integiry

Rare Species 70

Water Quality 60 Habitat for Terrestrial & 50 Aquatic Wildlife

20 Percent Mentioned in Each AgeCategory Each in Mentioned Percent

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Date Signed)

Figure IV.17 Percentage of easements in each age class (year signed) that included purposes related to "shoreline/riparian integrity," "rare species," "water quality," and "habitat for terrestrial & aquatic wildlife."

“Fragile/imperiled habitat” was not mentioned with enough frequency to display any trend over time. The only region showing any deviation from this trend is the Northwest, where the protection of “habitat for terrestrial and aquatic wildlife” and “shoreline/riparian integrity” were mentioned with greater frequency in the 1995 to 1999 age class compared to the 2000 to 2003 age class.

Table IV.31 Number and percentage of easements that included ecosystem and rare species-related purposes by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

PurposesU IncludedU Habitat for terrestrial 0 0.0 5 55.6 27 81.8 31 81.6 and aquatic wildlife Water quality 0 0.0 1 11.1 16 48.5 20 52.6 Shoreline/riparian 0 0.0 0 0.0 9 27.3 15 39.5 integrity Rare species 0 0.0 0 0.0 9 27.3 18 47.4 Fragile/imperiled 0 0.0 0 0.0 3 9.1 6 15.8 habitat

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Ecosystems and Rare Species Restrictions by Age Table IV.32 below depicts the frequencies over time for several restrictions aimed at protecting ecosystems and rare species. The construction of “water infrastructure” and prohibition against the “manipulation/alteration of water bodies” both experienced an upward trend over time. The prohibition against the “pollution of water bodies,” and the maintenance of “buffers” declined between the 1995 to 1999 age class and the 2000 to 2003 age class. During the same time however, the fact that the prohibition against the “manipulation/alteration of water bodies” increased could possibly account for some of this decline. While “pollution of water bodies” and “manipulation of water bodies” are certainly not interchangeable, it is not unforeseeable that one would appear to the exclusion of another in a WFCE. Also, restrictions on the use of “fertilizer” have become increasingly common. This could be due to concerns over nutrient loading in waterways, a problem for which fertilizer runoff is a primary cause.

More recent restrictions geared towards protecting ecosystems, namely the exclusion of “genetically modified organisms,” the prohibition against “introduction of non-native species,” and requirements for “ecological restoration” appeared only in the 1995 to 1999 and 2000 to 2003 age classes and have increased in frequency gradually over those years (Figure IV.18).

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45 Ecological Restoration 40 Introduction of Non-Native 35 Sp ecies

Percent Mentioned in Each Age Category Category Age Each in Mentioned Percent 10

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Date Signed)

Figure IV.18 Percentage of easements in each age class (year signed) that included "ecological restoration" and introduction of non-native species" as purposes related to ecosystem and rare species.

A growing concern over exotic species is reflected in the upward trend of the restriction for introduction of non-native species and it is likely that a restriction on GMOs also reflects this concern. Ecological restoration did not receive considerable mention in the 1984 to 1989, 1990 to 1994, and 1995 to 1999 age classes but was addressed by 31.6% of easements in the 2000 to 2003 age class, which could also be a result of increased concern over exotic species invasions. Restrictions on the construction and maintenance of “roads” have experienced high occurrence across all age classes. This is significant in the protection of ecosystems, as roads often contribute to fragmentation.

Diversity has increased in frequency over time and has been addressed in several ways. The “protection of biodiversity” and requirements for “maintaining diversity of stand age,” and “forest diversity” have all exhibited the same upward trend over time. “Forest diversity” and the “protection of biodiversity” both appeared in approximately 35% of WFCEs in the 2000 to 2003 age class. Requirements for “native plant and animal

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management practices” showed an increase in frequency over time, with a large jump in frequency between 1990 to 1994 and 1995 to 1999. This trend mirrors the trends seen in restrictions for the exclusion of “genetically modified organisms” and prohibitions against “introduction of non-native species” and reflects the same concerns mentioned above about exotic species.

Table IV.32 Number and percentage of easements that included ecosystem and rare species- related restrictions by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Water infrastructure 1 50.0 3 33.3 14 42.4 25 65.8 Manipulation/alteration of 0 0.0 1 11.1 19 57.6 27 71.1 water bodies Pollution of water bodies 2 100.0 3 33.3 17 51.5 15 39.5 Buffers 0 0.0 6 66.7 27 81.8 25 65.8 Fertilizers 2 100.0 5 55.6 12 36.4 20 52.6 GMOs 0 0.0 0 0.0 1 3.0 5 13.2 Introduction of non-native 0 0.0 0 0.0 8 24.2 16 42.1 species Ecological restoration 0 0.0 0 0.0 2 6.1 12 31.6 Best management practices 0 0.0 3 33.3 18 54.5 27 71.1 (BMPs) Roads 2 100.0 7 77.8 29 87.9 36 94.7 Protection of biodiversity 0 0.0 1 11.1 3 9.1 12 31.6 Maintain diversity of stand 0 0.0 0 0.0 5 15.2 8 21.1 age Forest diversity 0 0.0 1 11.1 8 24.2 14 36.8 Native plant and animal 0 0.0 0 0.0 12 36.4 17 44.7 mgmt. practices Maintain wildlife habitat 0 0.0 1 11.1 14 42.4 27 71.1

IV.1.7.e Ecosystems and Rare Species by Size of Easement

Ecosystems and Rare Species Purposes by Size of Easement Table IV.33 shows ecosystem and rare species related easement purposes. The protection of “habitat for terrestrial and aquatic wildlife” was seen with relatively high frequency in WFCEs of all size classes. After a slight decline between the 1,000 to 5,000 acres size class and the 5,001 to 10,000 acres size class, the protection of “water quality” increased in frequency with respect to size. The protection of “shoreline/riparian integrity” was also mentioned with relatively high frequency across size classes. These two purposes are the most used to address ecosystem protection. The protection of “rare species” and “fragile/imperiled habitat” occurred with lesser frequency and displayed no discernible trend over size.

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Table IV.33 Number and percentage of easements that included ecosystem and rare species-related purposes by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

PurposesU IncludedU Habitat for terrestrial 34 72.3 7 87.5 10 76.9 5 71.4 7 100.0 and aquatic wildlife Water quality 19 40.4 2 25.0 7 53.8 4 57.1 5 71.4 Shoreline/riparian 34 72.3 7 87.5 10 76.9 5 71.4 7 100.0 integrity Rare species 14 29.8 2 25.0 5 38.5 2 28.6 4 57.1 Fragile/imperiled 2 4.3 2 25.0 3 23.1 1 14.3 1 14.3 habitat

Ecosystems and Rare Species Restrictions by Size of Easement Table IV.34 below displays ecosystem-related restrictions with regard to size. Overall, there appears to be no general trends in ecosystem-related restrictions with regard to size. The construction of “water infrastructure” and “roads,” and the “maintenance of wildlife habitat” appeared with relatively high frequency in WFCEs of all size classes. Two restrictions, forest management-specific “protection of biodiversity” and “native plant and animal management practices,” showed slight increases in frequency with an increase in size.

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Table IV.34 Number and percentage of easements that included ecosystem and rare species-related restrictions by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Water infrastructure 25 53.2 5 62.5 7 53.8 4 57.1 3 42.9 Manipulation/alteration of 32 68.1 3 37.5 6 46.2 4 57.1 2 28.6 water bodies Pollution of water bodies 29 61.7 0 0.0 3 23.1 4 57.1 1 14.3 Buffers 34 72.3 6 75.0 9 69.2 6 85.7 3 42.9 Genetically modified 1 2.1 2 25.0 0 0.0 2 28.6 1 14.3 organisms (GMOs) Introduction of non-native 14 29.8 3 37.5 2 15.4 4 57.1 1 14.3 species Ecological restoration 9 19.1 2 25.0 1 7.7 1 14.3 1 14.3 Best management 26 55.3 7 87.5 6 46.2 4 57.1 5 71.4 practices (BMPs) Roads 42 89.4 7 87.5 12 92.3 6 85.7 7 100.0 Protection of biodiversity 5 10.6 2 25.0 4 30.7 2 28.6 3 42.9 Maintain diversity of 9 19.1 1 12.5 0 0.0 2 28.6 1 14.3 stand age Forest diversity 10 21.3 3 37.5 2 15.4 3 42.9 5 71.4 Native plant and animal 15 31.9 2 25.0 4 30.7 4 57.1 4 57.1 management practices Maintain wildlife habitat 21 44.7 5 62.5 5 38.5 5 71.4 6 85.7

IV.1.8 Recreation

Recreation and public access for activities such as hiking, biking, camping, hunting/fishing, and snowmobiling were important factors in the 82 WFCEs analyzed. This was especially true for regions of the country that were lacking in public lands to satisfy demand for these activities. Provisions for recreation and public access were often linked to landowner desires and public funding sources.

IV.1.8.a Recreation: Aggregate Data

Recreation Purposes and Restrictions: Aggregate Data Allowing for “public access and recreation” was mentioned in 68.3% of the 82 easements analyzed. This figure shows that a large number of WFCEs are allowing for public uses to occur on the property, which seems logical considering that recreation and public access qualify as a purpose for receiving federal tax breaks according to IRS guidelines. Most recreation-related restrictions were mentioned with very similar frequency in the aggregate. Allowing for “active recreation” appeared in 59.8% of easements, “passive

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recreation” appeared in 67.1% of easements, and “public access” was mentioned in 62.2% of easements. Restrictions against the use of “off-road vehicles (ORVs)” were addressed in 36.6% of WFCEs, however restrictions against the use of “snowmobiles” were restricted in 57.3% of WFCEs. Three other restrictions will be examined in this section: “vehicles,” “non-motorized recreation,” and “campfires.”

IV.1.8.b Recreation by Region

Recreation Purposes by Region The Northeast and Northwest differed in the frequency with which “recreation and public access” was addressed as a purpose in WFCEs. Compared to the 68.3% frequency with which this purpose appeared in the aggregate, Northeastern WFCEs mentioned it 89.3% of the time and Northwestern WFCEs mentioned it 18.2% of the time. This disparity is very likely due to the different amount of public lands in both regions. In the Northeast, where there is a relatively small amount of public land, public access becomes a much more important issue. Conversely, in the Northwest where there is considerably more public land, public access may be less prominent in WFCEs. There were no regional deviations from aggregate data for recreation-related restrictions.

IV.1.8.c Recreation by Easement Holder

Recreation Purposes by Easement Holder It is clear from the data that facilitating recreation and public access is more important on publicly-held WFCEs than those held privately. The data shows that 74.4% of public easements mention “recreation and public access” as a purpose, compared to 57.9% of privately-held easements. This is likely due to the fact that the public will often demand access to properties on which easements were purchased with public funds. Additionally, there is likely a demand for consistency across publicly-held easements, hence the high frequency that mention recreation and public access as a purpose. While the Forest Legacy program does not require public access, such access is much more common in these WFCEs than in easements held privately.

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Recreation Restrictions by Easement Holder Table IV.35 below details the frequency of recreation-related restrictions in publicly and privately-held working forest conservation easements. In every case, the restriction appears with more frequency in publicly-held easements than in those privately-held. This makes sense based on the data showing that public WFCEs mention recreation and public access as a purpose more frequently than privately-held easements.

Of particular importance is the disparity in how public and private easements deal with ORVs and snowmobiles, both of which have caused considerable controversy in the conservation community. Publicly-held easements restrict the use of both “ORVs” and “snowmobiles” with more frequency than privately-held easements (Figure IV.19).

ORVs 60 Snowmobiles

20 Percent Mentioned in Holder Category

0 Public Private Easement Holder

Figure IV.19 Percentage of easements that included restrictions related to “ORVs" and "snowmobiles" by easement holder.

This may be due to a demand for greater accountability on publicly-held easements to take these issues into consideration. Additionally, restrictions on ORV use appeared with very low frequency on privately-held easements. “Vehicles” and “non-motorized recreation” were addressed with relatively equal frequency by public and private holders.

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The restriction on campfires appears more frequently in publicly-held easements than in those held privately. This could be a result of the many bad wildfire seasons on public lands in recent years. A possible trend over time will be explored later in this chapter.

Table IV.35 Number and percentage of easements that included recreation and public access-related restrictions by easement holder. Publicly-held Privately-held Easements Easements # % # % Total Easements 39 100.0 38 100.0

RestrictionsU IncludedU Active recreation 26 66.7 19 50.0 Passive recreation 29 74.4 22 57.9 Public access 25 64.1 22 57.9 ORVs 18 46.2 9 23.7 Snowmobiles 24 61.5 19 50.0 Vehicles 20 51.3 16 42.1 Non-motorized recreation 28 71.8 24 63.2 Campfires 11 28.2 7 18.4

IV.1.8.d Recreation by Age of Easement

Recreation Purposes by Age of Easement Allowing for “recreation and public access” appeared in 50% of WFCEs in age class one, 88.9% of WFCEs in age class two, 72.7% of WFCEs in age class three, and in 60.5% of WFCEs in age class four. It appears then that over time working forest conservation easements have decreasingly mentioned recreation as an easement purpose.

Recreation Restrictions by Age of Easement Based on the results reported in Table IV.36 below, it appears that restrictions on allowing “active recreation,” “passive recreation,” and “public access” have all experienced similar trends in regards to frequency over time. These three restrictions were mentioned relatively frequently in the 1984 to 1989, 1990 to 1994, and 1995 to 1999 age classes and tapered off slightly in the 2000 to 2003 age class. This tapering in “active recreation” may signal a move toward recreation activities that have less impact on the land. The tapering trend for “passive recreation” and “public access” is much less pronounced and may not be symptomatic of any trend.

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ORV use has been restricted with decreasing frequency over time while restrictions on snowmobile usage have remained relatively constant. This finding seems a bit perplexing, especially considering the sizable controversy over ORV usage recently. Campfires have also been restricted less and less over time according to the data. This finding also runs contrary to what one might expect, based on recent wildfire seasons in the West.

Table IV.36 Number and percentage of easements that included recreation and public access- related restrictions by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # % 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Active recreation 2 100.0 5 55.6 22 66.7 20 52.6 Passive recreation 2 100.0 5 55.6 23 69.7 25 65.8 Public access 2 100.0 3 33.3 22 66.7 24 63.2 ORVs 2 100.0 4 44.4 13 39.4 11 28.9 Snowmobiles 2 100.0 5 55.6 20 60.6 20 52.6 Vehicles 2 100.0 6 66.7 16 48.5 15 39.5 Non-motorized 2 100.0 5 55.6 21 63.6 28 73.7 recreation Campfires 2 50.0 4 44.4 10 30.3 3 7.9

IV.1.8.e Recreation by Size of Easement

Recreation Purposes by Size of Easement Table IV.37 clearly shows that as easements get larger, “recreation and public access” was increasingly mentioned as a purpose. Larger properties may inherently provide more recreational opportunities, and larger deals may be of higher profile and therefore more likely to face public demands for access.

Table IV.37 Number and percentage of easements that included the purpose “recreation and public access” by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

PurposesU IncludedU Recreation and public 29 61.7 5 62.5 9 69.2 6 85.7 7 100.0 access

Recreation Restrictions by Size of Easement Table IV.38 shows recreation-related restrictions across size. Restrictions allowing “active recreation,” “passive recreation,” and “public access” show no discernible trends

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with respect to size. Snowmobiles were restricted more frequently in WFCEs in the 1,000 to 5,000 acre size class, perhaps indicating that their impact is more pertinent to WFCEs of smaller size. Restrictions pertaining to the use of “vehicles” appeared most frequently in easements in the 1,000 to 5,000 acre size class, perhaps reflecting ease of monitoring or the fact that it is just not a concern for bigger easements. Restrictions addressing “non-motorized recreation” increased in the 20,001 to 50,000 acres and 50,001 acres and greater size classes, perhaps showing a preference for this type of recreation on larger properties.

Table IV.38 Number and percentage of easements that included recreation and public access-related restrictions by size of property (acres). 1,000–5,000 5,001-10,000 10,001–20,000 20,001–50,000 50,001 and > Acres Acres Acres Acres Acres # % # % # % # % # %

Total Easements 47 100.0 8 100.0 13 100.0 7 100.0 7 100.0

RestrictionsU IncludedU Active recreation 25 53.2 7 87.5 8 61.5 5 71.4 4 57.1 Passive recreation 32 68.1 6 75.0 9 69.2 4 57.1 4 57.1 Public access 29 61.7 7 87.5 7 53.8 3 42.9 5 71.4 ORVs 21 44.7 2 25.0 4 30.8 2 28.6 1 14.3 Snowmobiles 30 63.9 4 50.0 5 38.5 4 57.1 4 57.1 Vehicles 27 57.4 2 25.0 5 38.5 4 57.1 1 14.3 Non-motorized 31 65.9 5 62.5 8 61.5 6 85.7 6 85.7 recreation Campfires 10 21.3 1 12.5 3 23.1 2 28.6 2 28.6

IV.2 Monitoring Survey Results

A sample of 51 WFCEs was used to analyze the methods currently being used to monitor WFCEs (see Chapter III for sample selection). Surveys could not be conducted for six of these easements due to an inability to contact monitoring professionals or to schedule a time to conduct a survey. Eighty-eight percent (or 45 easements) of the sample set agreed to participate in the survey. Of these 45, six properties were not conducting monitoring at the time of the survey. The six easements without current monitoring programs are considered first and the monitoring programs for the remaining 39 easements are then discussed (See Table IV.39).

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Table IV.39 Number of easements originally in survey set, unable to survey, with no monitoring program, and actually surveyed. Survey sample set 51 Easements Unable to survey 6 Easements 45 Easements

No monitoring program 6 Easements Easements surveyed 39 Easements

IV.2.1 Easements Not Currently Monitored

Of the 45 properties selected for the survey component of the research, six (or 13%) did not have any monitoring activity as of November, 2003. All the WFCEs reported as “not monitored” were from the two most recent age classes, and three of them were signed in 2003. Conversely, none of the easements for which surveys were conducted were signed in 2003. It is possible that insufficient time had passed since the 2003 easements were signed to have warranted monitoring on the property at the time of inquiry. If these three easements signed in 2003 were removed from the survey set, only 7% (or three out of 42) were not monitored. These three easements were all publicly-held, and ranged in size from under 10,000 acres to over 100,000 acres. These easements were signed between 1998 and 2002, and a full year had not passed since the signing of one of these easements at the time the survey was conducted. This easement was also associated with another easement signed later in 2003, and monitoring may have been delayed until this transaction closed.

Except where indicated, the results presented in the remainder of the chapter were drawn from the 39 easements that had a monitoring program in place at the time of this study. Outlined below are several considerations that are important to note when reviewing the results in the remainder of this chapter.

IV.2.2 Important Considerations for Interpreting Results

The following points should be considered when reading and interpreting the monitoring survey results, which are presented below:

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• Categories for easement size, age, holder, region, and monitoring personnel were used to analyze trends in monitoring. The distribution of surveyed easements is shown in Figures IV.20-IV.24. Several categories have ranges that include a limited number of easements. For example, the largest size category, easements on properties greater than 50,000 acres, represents three easements.

M ore than 50,000 8%

20,001-50,000 13% 1,000-5,000 36%

10,001-20,000 28%

5,001-10,000 15%

Figure IV.20 Percentage of 39 easements by size of property (acres).

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1985-1989 5% 1990-1994 10%

2000-2003 41%

1995-1999 44%

Figure IV.21 Percentage of 39 easements by easement age (year signed).

Private 46% Public 54%

Figure IV.22 Percentage of 39 easements by easement holder.

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Southwest Midwest 10% 5%

Southeast 10%

Northwest 13%

Northeast 62%

Figure IV.23 Percentage of 39 easements by geographic location.

5 or M ore 10%

3-4.99 8% 0-1.99 36%

2-2.99 46%

Figure IV.24 Percentage of 39 easements by number of monitoring professionals (estimated full-time equivalent).

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• Monitoring frequency is represented in this study as the number of times the property is “visited.” This would include monitoring on the ground, flying over the property, using satellite imagery, or meeting with the landowner. • Effectiveness ratings were on a scale of one (ineffective) to five (highly effective) where “effectiveness” was defined as the certainty of determining whether a restriction was violated (or purpose achieved). Effectiveness ratings represent self- reporting of monitoring effectiveness and should therefore be considered to be “perceived effectiveness.” • In the discussion of monitoring, the term “methods” is used in this study to incorporate all of the “techniques” used in monitoring. For example, the techniques of ground-level monitoring and aerial photography are both used in the monitoring method “ground-level and aerial.”

IV.2.3 Monitoring Protocols

As part of the analysis of monitoring, professionals were asked if their monitoring program was guided by a written monitoring protocol. A monitoring protocol can help to identify and coordinate activities used to mitigate threats to a WFCE’s target conditions. Hard copies of monitoring protocols were collected and analyzed whenever possible. Review of the documents showed significant variation in the content and structure of monitoring protocols. Some protocols included a list or summary of restrictions in the easement and specific methods for detecting violations of these restrictions. For example, one easement protocol clearly listed the easement restriction (e.g. “gravel pits: no more than 1% of property”), and corresponding monitoring activities (e.g. “use GPS to locate each active excavation on GIS map”).

Other monitoring protocol documents explained the scope and purpose of monitoring, monitoring procedures and expectations, detailed monitoring plans, and even reminders about the importance of communication with landowners. Some protocol documents stressed the importance of familiarity with baseline documentation and restrictions in the easement, and called on the monitoring expert to become familiar with the easement language prior to monitoring. Other protocol documents listed questions to ask the

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landowner on an annual basis and stressed the importance of being consistent with these questions from year to year.

Of the 39 easements in the sample set, 22 (or 56% of the easements) had a monitoring protocol. The average effectiveness rating (for restriction monitoring) was 3.8 out of a 5.0 scale for easements with monitoring protocols versus 3.5 out of a 5.0 scale for those without monitoring protocols (Figure IV.25).

2 Restrictions

1 Without Monitoring Protocol (Average: 3.5) Average of Effectiveness Ratings across With Monitoring Protocol (Average 3.8) 0 0 5 10 15 20 25 Easements

Figure IV.25 Monitoring effectiveness for easements with and without a monitoring protocol.

It is interesting to note that the easements with the five highest effectiveness ratings were easements with monitoring protocols. It seems logical that having a monitoring protocol would increase monitoring effectiveness. Having a list of restrictions available would likely be more effective than relying on the memory of a monitoring individual or on a general monitoring approach of looking for things that don’t appear appropriate. The process of going through the survey seemed to be helpful to many respondents because it forced conscious attention to how each restriction is (or is not) monitored. On at least one occasion, the list of restrictions in the survey was subsequently used by a respondent

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to determine the best method for future monitoring. The process of creating a monitoring protocol could serve a similar purpose for monitoring professionals.

There was a correlation between the size of an easement and whether a monitoring protocol was used. The smallest (n=14) and largest (n=3) easements in the study set used monitoring protocols with a frequency of 79% and 100% of the time, respectively. Eleven of the 14 easements (79%) covering 1,000 to 5,000 acres had a monitoring protocol. Fifty percent or fewer of all the middle size classes (where properties ranged in size from 5,001 acres to 50,000 acres) had monitoring protocols. The group of easements with the lowest percentage of monitoring protocols used was the 10,001 to 20,000 size class with 27% using a monitoring protocol.

Privately-held easements were 2.5 times more likely to have a monitoring protocol than easements held by public agencies (private 83% and public 33%). One explanation for this significant difference may be due to the fact that publicly-held easements are often funded through Forest Legacy, which designates money for the acquisition of land, but does not earmark funds for monitoring. Private organizations tend to create endowments to fund monitoring activities, whereas some states restrict the use of endowments by public agencies. The time (and therefore cost) of creating a monitoring protocol for numerous easements may be more prohibitive for public agencies.

IV.2.4 Baseline Documentation

As stated in the literature review (Chapter II), in order to develop an effective monitoring regime an organization should start with identifying the current status (baseline) of the ecological system, processes, or area that is the focus of the conservation purposes in the easement. It is critical that baseline documentation is collected at the time of signing so that any violations within the first several years can be detected. Without documentation of baseline conditions related to each restriction, detection and enforcement of violations would be difficult or impossible. The data showed significant efforts on the part of the conservation community to collect baseline information.

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IV.2.4.a Existence of Baseline Documentation

Overall, 90% of the easements had established baseline documentation. The easements that did not have baseline documentation (n=3) were all larger properties, greater than 10,000 acres. Two of these easements were signed in 1998, and one was signed in 2002. While these easements are all in the two latest time periods, it seems that enough time had passed since the signing of these easements to have collected baseline documentation. There was little variation between public agencies and private organizations with regard to baseline documentation. Ninety-four percent of easements held by private organizations and 90% of easements held by public agencies conducted baseline documentation.

IV.2.4.b Portion of Restrictions in Baseline

Considering only easements for which a baseline was collected, an average of 72% of restrictions in those easements were considered in the baseline document. (One easement with baseline was not included in this analysis due to errors in data collection.) The range of restrictions included in the baseline was from as few as 25% of restrictions to as many as 100% of restrictions. The median of percentage of restrictions included in baseline was 76%. In general, the size of the property did not correlate with the inclusion of restrictions in the baseline documentation (most size categories ranged from 71%- 82%), with the exception of the largest easements. For easements larger than 50,000 acres (n=3), 50% of restrictions were considered in baseline documentation.

The age of a WFCE did appear to correlate with the inclusion of restrictions in the baseline documentation. Older easements had a higher percentage of restrictions reflected in their baseline. This observation could be related to the fact that older easements were (on average) smaller than newer easements and therefore may require less time and money to conduct baseline. This hypothesis is supported by the observation above that the largest easements include fewer restrictions in baseline on average. It could also be the case that documentation reports for older easements were drafted directly from the language in the text of the easement, whereas newer easements may be structuring their baseline documentation from a template. However, there were no direct

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questions during the survey that attempted to identify use of a template for baseline documentation.

There was no significant difference between public agencies and private organizations with regard to the number of restrictions that were included in baseline. Private organizations included an average of 69% of restrictions in baseline documentation and public organizations included an average of 77%. The number of monitoring staff involved with monitoring an easement did not correlate with the number of restrictions included in baseline documentation.

IV.2.4.c Specific Restrictions Included in Baseline Documentation

While the previous section identified the portion of restrictions in a given easement that were included in the baseline document, this section considers the likelihood that a specific restriction was included in the baseline document if it appeared in the easement. On average, a given restriction was included in baseline documentation in 74% of the easements in which it appeared, with a minimum of 25% and a maximum of 100%. In a second examination, restrictions for which it might be inherently difficult to collect baseline data, such as “boating,” “biking,” “horses,” “salvage timber rights” etc., were omitted from the analysis (See Appendix E for a complete list of restrictions omitted for this secondary analysis). The results from the modified data were remarkably similar to the results of the complete data, with 76% of restrictions included in the baseline. The modified data showed a minimum number of restrictions included in the baseline of 26% and a maximum number of restrictions included in the baseline of 100%.

An additional question addressed in this section is whether there were specific restrictions, or types of restrictions (for example, restrictions related to recreation), that tended to be included in the baseline documentation more (or less) than others. Many restrictions that were included in the baseline in at least 90% of the easements in which they occurred were related to structures and development (17 of 38 restrictions, or 45%). Results were similar when this analysis was limited to restrictions that occurred in at least ten easements (5 of 13 restrictions, or 38%).

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IV.2.4.d Baseline Documentation, Monitoring, and Effectiveness

The existence of baseline documentation for a given restriction appeared to correlate with the likelihood that it was monitored and the monitoring effectiveness rating. Of restrictions with baseline information, 97% were monitored, while 84% of restrictions without baseline documentation were monitored. It is possible that a third factor, such as a restriction’s perceived “importance” or ease of measurement, might have affected both baseline collection and monitoring in the same direction. However, it seems logical that a restriction would be less likely to be monitored in the absence of baseline data. As one monitoring professional reported, “If you don’t have a baseline for water quality, you would later have a hard time enforcing an infraction.” Restrictions without baseline documentation that were monitored received lower effectiveness ratings on average than did restrictions with baseline documentation (3.5 and 3.7 out of a 5.0 rating, respectively).

The importance of the collection of baseline data presupposes that this information will be used directly in ongoing monitoring. On a few occasions, it was either explicitly reported or was the impression of the researchers that baseline data was housed in a document that just “sits on the shelf.” It is not only critical to effective monitoring that baseline data is collected, but also that it is used directly in ongoing monitoring.

IV.2.5 Compliance / Restriction Monitoring

Monitoring has traditionally been focused on restrictions (versus purposes), or “compliance” monitoring. This section considers how comprehensive monitoring programs are and which restrictions tend to be monitored most and least frequently.

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IV.2.5.a Portion of Restrictions Monitored

For easements with monitoring programs in place, the average percentage of restrictions reported to be monitored was 94%, with a range of 46%-100% (Figure IV.26).

100

90 80

70 60

50 40

30 20

10 % of Restrictions Monitored in Easement in Monitored % Restrictions of 0 0 5 10 15 20 25 30 35 40 Easement

Figure IV.26 Percentage of restrictions monitored by easement.

For 23 of the 39 easements, 100% of the restrictions in the easement were reported to be monitored. Size correlated with the percent of restrictions that were monitored. Easements covering more acreage tended to have fewer restrictions monitored on average (Figure IV.27).

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100

50 N=14 N=6 N=11 N=5 N=3

Monitored 40

Average% ofRestrictions in Easement are that - 1,000-5,000 5,001-10,000 10,001-20,000 20,001-50,000 >50,000 Size of Easement Property (acres)

Figure IV.27 Average percentage of restrictions monitored in easements by size of property (acres) and number of easements (N) in size class.

On average, private organizations and public agencies monitored a similar portion of their restrictions. Private organizations monitored an average of 95% of their restrictions while public agencies monitored an average of 93% of their restrictions. There was little variation by region: the average percentage of restrictions monitored for easements in all regions other than the Midwest was 96%, while the Midwest (n=2) had an average of only 74% of restrictions monitored.

IV.2.5.b Specific Restrictions Monitored / Not Monitored

Restrictions were evaluated in order to distinguish between those monitored in relatively few of the easements in which they appeared and those monitored in most or all of the easements in which they appeared. Table IV.40 shows those restrictions that were found in ten or more easements and that were monitored in 100% of the easements in which they appeared.

Many restrictions that fell into the “most monitored” category were related to development, alteration of topography, water, forestry and agriculture. Forestry related

Chapter IV – Results and Analysis 163 restrictions appeared 11 times, comprising 32% of the most monitored list. Restrictions pertaining to development, such as those restricting “commercial/industrial development,” “residential development,” “construction of buildings,” and “new road construction,” appeared eight times (24%). Restrictions pertaining to the alteration of topography, such as those restricting “removal of topsoil” and “excavating,” were mentioned five times (or 24%). Water related restrictions appeared five times out of 34 (or 15%). These restrictions included the maintenance of “buffers of water bodies” and “quality watercourses” and the “management of steep slopes.” Two agriculture related restrictions (6%) were also monitored 100% of the time.

Table IV.40 Restrictions that appeared in ten or more easements and that were monitored in 100% of the easements in which they appeared. Easements w/ Restriction Restriction Dumping (ash, trash, garbage...) 35 Commercial /industrial development 33 Mining (in general) 33 Residential development / structures 31 Removal of topsoil, sand, gravel… 30 Buildings (in general) 29 New road construction 29 Buffers of water bodies 25 Roads (in general) 25 Excavating 24 Roads and skid trail restrictions 22 Drilling (oil, natural gas) 20 Maintain quality watercourses 20 Grazing 17 Communication towers 16 ORVs 16 Quarrying 15 Steep Slopes management 15 Culvert 14 Forest inventory (stand descriptions, etc) 14 Growing, stocking, cutting and sale of any trees 14 Timber harvest goals and standards 14 Clear-cutting / liquidation of forests 13 Introduction of non-native vegetation 12 Landing yards size and required grading schedule 12 Native plant & animal management practices 12 Sound/generally accepted practices 12 Sustainable Forestry Practices 12 Burying 11 Parking lots 11 Animal husbandry 10 Ditching 10 Introduction of non-native animals 10 Maple sugar house 10

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At the other end of the spectrum, restrictions that were monitored in relatively few of the easements in which they occurred included many restrictions relating to recreation and chemicals. Of 17 restrictions falling into the least monitored category, nine (or 53%) related to recreation and three (or 18%) related to chemicals (Table IV.41). As one monitoring professional reported, “I guess the easiest thing to monitor, in general…are forest management activities, because they are visible. Building a house is visible, recreation is not visible for the most part. And water quality activities are not necessarily visible but the results are visible.”

Table IV.41 Restrictions that appeared in ten or more easements and that were monitored in 85% or fewer of the easements in which they appeared. Easements with Restriction Monitored Restriction Restriction Monitored (%) Pesticides 20 17 85 Sewer systems (septic facilities) 13 11 85 Hiking / snowshoeing 19 16 84 Snowmobiles 17 14 82 Biking 11 9 82 Pollution of water bodies 16 13 81 Trails 20 16 80 Feed lots 10 8 80 Non-timber vegetation removal 14 11 79 Fishing 18 14 78 Horses 18 14 78 Camping (in general) 24 18 75 Fertilizers 12 9 75 Firewood harvesting 12 9 75 Fungicides 12 9 75 Traditional non-motorized recreation 14 10 71 Canoeing / kayaking 10 6 60

It is important to note that not all the restrictions linked to these categories appeared in either the “most-monitored” or “least-monitored” categories. For example, many restrictions relating to recreation appeared at the lower end of the spectrum of monitoring across easements including those restricting: “hiking/snowshoeing,” “snowmobiles,” “biking,” “trails,” “fishing,” “horses,” and “camping.” However restrictions related to “off-road vehicles (ORVs)” were monitored in 100% of the easements in which they occurred. See Appendix E for a complete list of restrictions, the total number of easements in which the restriction was mentioned, and the percent of easements in which they were monitored.

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While the data was limited somewhat across restrictions within size ranges, there was a trend (consistent with what was reported above) that certain restrictions presented monitoring challenges on larger properties. Several restrictions relating to recreational activities and the application of chemicals and fertilizers are examples. Many of these restrictions were monitored at lower rates for larger properties than for smaller properties. For example, restrictions on the application of “fungicides” were monitored 100% of the time on properties in the two smallest size categories, 80% of the time on properties ranging in size from 10,001 to 20,000 acres, 50% of the time on properties ranging in size from 20,001 to 50,000 acres, and they were never monitored on the largest properties (over 50,000 acres). Similarly, restrictions related to “fishing” were monitored 100% of the time on properties in the two smallest size categories, 71% of the time on properties ranging in size from 10,001 to 20,000 acres, 67% of the time on properties ranging in size from 20,001 to 50,000 acres and never monitored on the largest properties (over 50,000 acres).

IV.2.6 Monitoring Methods and Techniques

As mentioned above, for the purposes of this study the term “technique” refers to an individual monitoring approach, such as aerial photography, meeting with landowner, or ground-level monitoring. “Method” refers to the package of techniques used by a monitoring professional; for example, the method of using the two techniques of ground- level monitoring and aerial photography together. If a technique was used in isolation, it was also considered a method.

IV.2.6.a Methods and Techniques Used to Monitor WFCEs

The following techniques, which were often combined in various monitoring methods, were identified in conversations with monitoring professionals. • Ground-level (On site monitoring on foot or by automobile.) • Aerial (Monitoring by airplane, with or without photography or videos) • Meeting with Landowner • Satellite Imagery

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Of the methods identified by the monitoring professionals, “ground-level monitoring” was the most commonly cited, with 38% of the properties monitored solely with this technique (See Table IV.42). The combinations of “aerial and ground-level” and “aerial, ground-level and meeting with landowner” are also common methods, used on 18% and 21% of properties, respectively.

Table IV.42 Number and percentage of 39 easements using monitoring methods and techniques.

% of Monitoring Methods Easements Easements Ground-level (walk/drive) 15 38 Ground-level / aerial / meeting 8 21 Aerial and ground-level 7 18 Ground-level and meeting with landowner 4 10 Aerial photos/ground-level/map/aerial video 1 3 Meeting with landowner 1 3 Satellite / aerial / ground-level 1 3 Satellite imagery / ground-level / meeting 1 3 Volunteers walk property / ground-level (staff) 1 3

Use of Individual Techniques Ground-level 38 97 Aerial 17 44 Meeting with landowner 14 36 Satellite imagery 2 5

Ground-level monitoring is a technique used by all but one of the professionals surveyed (97% of easements surveyed). The one easement for which ground-level monitoring was not employed was monitored with a meeting with the landowner as the exclusive technique. Meetings with landowners were used as a technique on 14 of the 39 properties (See more information on this technique below). The use of satellite imagery was reported on two properties (6%). Neither of these properties used this technique in isolation: both also used ground-level monitoring as part of their monitoring method.

IV.2.6.b Variation in Monitoring by Size

Ground-level monitoring, used alone, was the most common method used on both the 10,001 to 20,000 and the 20,001 to 50,000 acre size categories (Table IV.43). The combined method of aerial and ground-level monitoring was most commonly used for the monitoring of the smallest properties: 36% of the properties between 1,000 and 5,000 acres used this combined method. Not surprisingly, satellite imagery was only used on the largest properties: 67% of those over 50,000 acres used this technique as part of their

Chapter IV – Results and Analysis 167 monitoring (two of three properties surveyed). Monitoring methods that include aerial photography tended to be most common on the largest properties, but aerial photography was also very common on easements in the smallest size category. Fifty percent of the properties in the smallest size category were monitored with the technique of aerial surveillance.

Table IV.43 Number and percentage of easements using monitoring methods and techniques within size ranges of properties covered by the easement. 1,000- 5,001- 10,001- 20,001- 50,001 5,000 10,000 20,000 50,000 and > Acres Acres Acres Acres Acres # % # % # % # % # % Total Easements 14 100 6 100 11 100 5 100 3 100

MonitoringU MethodU

Aerial and ground-level 5 36 1 9 1 20 Aerial photos/Ground- 1 17 level/map/aerial video Ground-level (walk/drive) 5 36 1 17 6 55 3 60 Ground-level/aerial /meeting 2 14 1 17 3 27 1 20 1 33 Ground-level and meeting with 1 7 3 50 landowner Meeting with landowner 1 7 Satellite/aerial/ground-level 1 33 Satellite imagery/ground-level/ 1 33 meeting Volunteers walk property/ 1 9 ground-level (staff)

UseU of Individual TechniquesU # % # % # % # % # %

Ground-level 13 93 6 100 11 100 5 100 3 100 Aerial 7 50 2 34 4 36 2 40 2 67 Meeting with landowner 4 28 4 67 3 27 1 20 2 67 Satellite imagery 2 67

IV.2.6.c Variation of Monitoring by Age of Easement

The exclusive use of ground-level monitoring was most common for older easements: 83% of easements from 1985 to 1994 used this method (five out of six easements). Monitoring for newer easements tended to involve a greater variety of techniques, with the use of video technology and satellite imagery appearing in only the most-recent age category. This relationship may be due to the larger size of many newer easements.

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IV.2.6.d Variation in Monitoring by Easement Holder

Monitoring methods used by private organizations differed somewhat from those used by public agencies. Satellite imagery was only used on privately-held easements. However, there were no publicly-held properties over 50,000 acres included in the survey. Properties monitored with ground-level monitoring, meeting with landowner or a combination of these techniques represented 39% of privately-held easements and 62% of publicly-held easements. This pattern may be a result of the costs of other techniques prohibiting their use by public easement holders. For example, one monitoring professional for a publicly-held easement reported that satellite imagery “is an effective technology, it is just a matter of cost. With current state budgets, it is not a very feasible thing for us to look at...but one pilot project we did...proved to be very effective.” Meeting with landowner is a technique used in the overall methods for 29% of privately- held easements and 43% of publicly-held easements. Aerial monitoring is a technique used for 51% of privately-held easements and 39% of publicly-held easements.

IV.2.6.e Variations in Monitoring by Number of Monitoring Personnel

Differences related to the number of staff monitoring each easement property were mostly inconclusive. However, the data did show that 79% of easements monitored by one or fewer professionals used ground-level monitoring alone.

IV.2.6.f Meeting with Landowner as a Monitoring Technique

The role of a meeting with the landowner was important to many of the professionals surveyed. Initial reluctance about including this as a monitoring technique was overcome by the strong feelings voiced by professionals regarding the value of maintaining a good relationship with the landowner. One professional monitoring a publicly-held easement said: “It does seem weird in a way to think of communication as monitoring…a better word would be stewardship...because it is preventative and [keeps] everyone feeling positive about the easement and knowing what is going on…[communication with the landowner] is preventative and it really helps.”

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All reports of “meeting with landowner” as a monitoring technique were recorded as such. While only one property was monitored solely by meeting with the landowner, 13 others reported meeting with landowner as a technique within their monitoring method, for a total of 14 easements, or 36% of the easements surveyed. While these easements are diverse by size, two size categories stood out: 67% of properties in both the 5,001 to 10,000 and the 50,001 acres and greater categories are monitored in part by meetings with landowner (versus an average of 25% in the other size categories). It is important to note that some professionals may not have considered a meeting to be a monitoring technique. It may be that more individuals are meeting with landowners but did not mention it as a monitoring technique during the surveys. As the surveys used open-ended questions, respondents were not questioned directly about whether their monitoring methods included meetings with landowners.

Meetings with landowners were reported more often to monitor newer easement properties. While 50% of easements signed in 2000 or later were monitored with meetings, only 17% of those from 1985 to 1994 were monitored using this technique, and 29% of those from 1995 to 1999. This may relate to the greater size of newer properties. There may also be an institutional inertia factor: if a property was formerly monitored without a meeting, it may continue to be monitored in this fashion. As the importance in meetings has become increasingly highlighted, organizations may find it easier to institute meetings at the outset with a new easement than to institute a meeting on an older easement.

Publicly-held easements were more likely to include a meeting in their monitoring (43%) than were those that are privately-held (28%). Those organizations with more staff monitoring the easements were more likely to use the meeting technique: the largest (by number of staff) are almost four times as likely to use annual meetings as those with the smallest staffs. This trend was consistent through all four of the staff categories (Table IV.44). This trend in the use of meetings may be related to the amount of staff time available to meet with the landowners.

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Table IV.44 Easements for which meeting with landowner was reported as a monitoring technique and size of monitoring staff. Staff Involved Easements Monitored Easements in % of Easements w/ in Monitoring w/ Meeting Technique Staff Category Meeting Technique 0-1 3 14 21 2-2.9 6 18 33 3-4.9 2 3 67 > 5 3 4 75

IV.2.6.g Third-Party Monitoring

Twenty-one percent of the properties had restrictions that were monitored by some form of third-party monitoring (eight of 39). It was most commonly used in the 5,001 to 10,000 acre size range. Third-party monitoring was used by 29% of publicly-held easements, and by 11% of privately-held easements. One interesting result was an increase in the use of third-party monitoring as the number of staff increased: the 0-1 staff category had 7% using third-party monitoring, 2-2.9 had 11%, 3-4.9 had 67%, and 5+ had 75%.

IV.2.7 Monitoring Effectiveness

The monitoring effectiveness ratings (1 to 5 scale) for the restrictions in each easement were averaged to create an overall effectiveness rating for each property. These easement effectiveness ratings ranged from 2 to 5, and averaged 3.7 out of a 5.0 rating. There was not a consistent trend in the perceived effectiveness of restriction monitoring based on differences in the size of the properties. This result is contrary to an expected decrease in effectiveness of monitoring for the largest size category (Figure IV.28).

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5.0

4.0

3.0

2.0 N=14 N=6 N=11 N=5 N=3

1.0 Average Monitoring Effectiveness

0.0 1,000-5,000 5,001-10,000 10,001-20,000 20,001-50,000 >50,000 Size of Easement Property (acres)

Figure IV.28 Average monitoring effectiveness for easements by size of property (acres) and number of easements (N) in size class.

However, the middle three size categories did show a trend of decreasing effectiveness with larger size. There was similar use of aerial photography in these three categories (34% to 40% of easements). It could be that the lack of aerial photography or satellite imagery on approximately 60% of the easements in these categories reduced effectiveness as size increased. One monitoring professional reported that “one improvement we need to make is increasing our level of technology in monitoring, especially on big easements.”

In contrast to the middle three size categories, all properties in the largest category (which was rated highest in effectiveness) used either aerial photography or satellite imagery. The fact that the smallest category was rated so low in effectiveness is surprising considering the use of aerial photography on 50% of the easements. Meeting with landowners could also be playing a role—the two highest ranked size categories reported the highest use of meetings (67% of easements in both) and the size categories lowest in effectiveness reported the lowest use of meetings (less than 30% of easements

Chapter IV – Results and Analysis 172 in each). More recent easements were found to be rated as more effectively monitored (Figure IV.29).

5.0

4.0

3.0

2.0

N=2 N=4 N=17 N=16 1.0 Average Monitoring Effectiveness

0.0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Year Signed)

Figure IV.29 Average monitoring effectiveness for easements by age of easement (year signed) and number of easements (N) in age class.

It is possible that the properties with more recent easements are more likely to be under the ownership of the original grantor of the easement. Organizations may have closer relationships with these recent grantors and they are more likely to be familiar with, and supportive of, the easement terms. A higher effectiveness on more recent easements could also be related to the greater use of annual meetings on more recent easements, or to greater familiarity with recent documents among staff.

There was no significant difference in perceived monitoring effectiveness between publicly-held and privately-held easements. Properties monitored with greater numbers of staff were found to be more effective (Figure IV.30).

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5.0

4.0

3.0

2.0 N=14 N=18 N=3 N=4

Average EffectivenessRating 1.0

0.0 0-1.99 2-2.99 3-4.99 5 or M ore M onitoring Personnel (Estimated Full-Time Equivalent)

Figure IV.30 Average monitoring effectiveness for easements by number of monitoring personnel (estimated full-time equivalent) and number of easements (N) in personnel class.

IV.2.7.a Effectiveness of Monitoring Methods

Ground-level monitoring, when used alone as a method, was rated the lowest in perceived effectiveness (3.1 out of a 5.0 rating) (Table IV.45). Ground-level monitoring was also the method used on the most properties (38% of easements). All of the methods that included a meeting with the landowner were rated as more effective than their counterparts. For example, ground-level monitoring and meeting with landowner (4.4 out of a 5.0 rating) is rated substantially higher than ground-level monitoring alone (3.1 out of a 5.0 rating). In four out of five size categories, the most effective method included the use of a meeting.

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Table IV.45 Average effectiveness ratings for monitoring methods. Shaded methods are those that were used for more than one easement.

Average of Monitoring Easements Monitoring Technique Effectiveness Using Method Volunteers walk property /ground-level (staff) 5.0 1 Meeting with landowner 4.6 1 Ground-level and meeting 4.4 4 Satellite/aerial/ground-level 4.1 1 Satellite/ground-level /meeting 4.1 1 Aerial photos /ground-level/map/aerial video 4.1 1 Ground-level/aerial/meeting 3.9 8 Ground-level and aerial 3.8 7 Ground-level (walk/drive) 3.1 15 Overall 3.7 39

At the conclusion of several surveys, the monitoring professionals were asked if their ratings of effectiveness were impacted by their relationship with the landowner. Most felt that their ratings were impacted—one monitoring professional reported that “having good relations with a landowner is critical to knowing whether you are going to have a problem with something...having them come to you first and ask you the question first is more desirable.” The importance of landowner meetings in the effectiveness of the monitoring programs was also evident from many reports that the monitoring method used on a given property would likely change if there were a change in ownership.

One surprising aspect of these results is that the combination of ground-level monitoring and landowner meetings had a higher effectiveness rating on average than did the combination of ground-level monitoring, landowner meetings and aerial monitoring. While both methods were used on multiple easements, three of the four easements that used the combination of ground-level monitoring and landowner meetings were reported by one organization.

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IV.2.7.b Effectiveness by Restriction

When looking at the effectiveness ratings given to individual restrictions regardless of monitoring technique, certain trends appeared. The restrictions perceived to be least effectively monitored included those that restricted recreation and chemical use, and ecological assessments such as “introduction of non-native species,” “maintaining stand diversity,” and “maintaining downed material.” Specifically, there were 34 restrictions that received effectiveness ratings averaging less than three. Of those, 12 (35%) were related to recreation. Eight of these restrictions with low effectiveness ratings (24%) were related to chemicals and/or fertilizers. Results were similar when this analysis was constrained to those restrictions that were rated in five or more easements (resulting in 26 restrictions with average effectiveness ratings of three or lower). In this modified set of restrictions with low average effectiveness ratings, ten (38%) were related to recreation and six (23%) were related to chemicals and/or fertilizers (Table IV.46).

Table IV.46 Restrictions appearing in five or more easements with average effectiveness ratings lower than 3.0. Average Effectiveness Number of Restriction Rating Easements ORVs 2.93 15 Hunting/trespassing indicators 2.93 15 Maintain downed material 2.83 6 Non-timber vegetation removal 2.73 11 Snowmobiles 2.69 13 Pollution of water bodies 2.69 13 Biking 2.57 7 Water rights 2.57 7 Vehicles 2.56 16 Firewood harvesting 2.56 9 Boundary markers 2.50 6 Hiking/snowshoeing 2.50 12 Fertilizers 2.43 7 Introduction of non-native animals 2.40 10 Maintain diversity of stand age 2.40 5 Fishing 2.30 10 Public access 2.27 11 Traditional non-motorized recreation 2.25 8 Horses 2.23 13 Pesticides 2.21 14 Herbicides 2.21 14 Insecticides 2.00 10 Rodenticides 2.00 10 Fungicides 2.00 8 Canoeing / kayaking 1.67 6 Fires (camping, cooking, warmth, etc) 1.50 6

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On the other end of the spectrum, restrictions perceived as most effectively monitored included many restrictions related to structures, roads, extraction, and clear-cutting. There were 34 restrictions with average effectiveness ratings of 4.25 out of a 5.0 rating or higher. Of these, 19 (56%) were related to development (including structures and roads). Results were similar when the list of restrictions was limited to those receiving ratings in at least five easements. Twelve of these 22 restrictions (52%) were related to development (Table IV.47). These results are similar to the above analysis of restrictions that tend to be monitored or not monitored. A complete list of effectiveness ratings for restrictions, including a breakdown by monitoring technique, is included in Appendix E.

Table IV.47 Restrictions appearing in five or more easements with average effectiveness ratings of 4.25 or higher. Average Effectiveness Number of Restriction Rating Easements Sawmills 4.71 7 Maple sugar house 4.70 10 Impervious surfaces 4.67 6 Right-of-ways 4.60 5 Buildings 4.57 28 Commercial/industrial development 4.53 30 Residential development/structures 4.52 29 Aircraft landing strip 4.50 6 Septic system 4.43 7 Quarrying 4.40 15 Ecological restoration 4.40 5 Satellite dishes & antennae 4.40 5 Billboards 4.38 29 Commercial camping accommodations 4.38 8 For Sale (property/commercial products) 4.38 8 Mining (in general) 4.36 33 Roads (in general) 4.32 25 Clear-cutting 4.31 13 Signs (in general) 4.29 24 Parking lots 4.27 11 Communication towers 4.27 15 Removal of topsoil, sand, gravel, and peat 4.27 30

IV.2.8 Frequency of Monitoring

The frequency with which easement properties were monitored ranged from approximately four times per year to once every two and a half years with an average of approximately 1.6 times per year. Frequency of monitoring was reported to be variable in many cases depending upon activity. It was reported on several occasions that regular

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monitoring visits were supplemented by visits at times of silvicultural activity. These visits were often made before, during and after the cutting activities.

On average, the properties in the largest size class (greater than 50,000 acres) were visited most frequently: 2.27 times per year; the 20,000 to 50,000 acre size class was visited the least (Figure IV.31).

2.5

2.0

1.5

1.0

N=14 N=6 N=11 N=5 N=3 0.5

Average Frequency of Monitoring (Visits per Year) per (Visits Monitoring of Frequency Average 0.0 1,000-5,000 5,001-10,000 10,001-20,000 20,001-50,000 >50,000 Size of Easement Property (acres)

Figure IV.31 Frequency of monitoring for easements by size of property (acres) and number of easements (N) in size class. Frequency is represented as "visits" per year. Visits include ground-level monitoring, aerial monitoring, satellite imagery and landowner meeting.

There was little difference found between the average frequency of monitoring conducted by state agencies (1.65 times per year) and that of private organizations (1.53 times per year). The number of staff involved in monitoring the properties did impact the frequency of monitoring: organizations with between two and five staff monitored their properties most frequently, whereas those with either greater than five staff or one or fewer staff doing the monitoring were monitoring least often.

The frequency of monitoring also varied by the age of the easements: newer easements are being monitored more frequently on average. This observation could be related to an

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increased use of monitoring endowments in recent years, to an increase in size or to a recent increase in public concern about stewardship of properties.

Data on regional differences in frequency of monitoring were inadequate to make convincing observations. What was found in the study was that the Northeast and Southeast regions are monitoring most frequently (1.76 and 1.68 times per year), the Midwest is monitoring least frequently (0.7 times per year), and the Southwest and Northwest were closer to the average (1.5 and 1.2 times per year). However, some of these results are based on a small number of easements (See Figure IV.23 for the number of easements represented in each region).

IV.2.9 Purpose Monitoring

In addition to surveying monitoring professionals on their restriction monitoring strategies, easement purpose monitoring was also addressed. Monitoring for ecological or environmental purposes can be more difficult than monitoring for restrictions, but there are several potential benefits. If monitoring revealed that purposes were not being met with a given combination of restrictions, organizations could reevaluate the restrictions they choose to include for those purposes when drafting future easements. There also may be opportunities to amend current easements if landowners are amenable to additional restrictions. Finally, the overall effectiveness of WFCEs as a conservation tool can only be evaluated over long time periods. Monitoring for purposes could provide the necessary data for this evaluation process and guide the use of WFCEs in the future.

Although there are potential benefits to purpose monitoring, these benefits must be considered in the context of resource allocation within a given conservation organization. As one professional stated, “Obviously it would be great to have a staff of biologists who could go out and do a survey every year.” Purposes such as “preserving biodiversity” could also pose particular definitional and measurement challenges. Finally, purpose monitoring would likely not assist the land trust in enforcement issues due to difficulties in proving causation. For example, it would be difficult to prove that a decrease in

Chapter IV – Results and Analysis 179 biodiversity was the fault of the landowner. Due to these enforcement difficulties, purpose monitoring would not serve as a substitution for restriction monitoring, but rather as a complement.

Given the trade-offs involved with purpose monitoring, efforts were made to determine the level to which conservation organizations are conducting this type of monitoring. Both the survey instructions and the researcher conducting the survey made a clear distinction between restriction monitoring and purpose monitoring. For the intention of this research, purpose monitoring was defined as monitoring that is not linked to a specific restriction in the easement, but instead seeks to determine if the purposes of the easement are being met. The two types of purposes that were analyzed for monitoring in this analysis were those related to forest health and ambient conditions (for example, preservation of “water quality”).

IV.2.9.a Portion of Purposes Monitored

Of the WFCEs that had purposes relating to forest health and ambient conditions, 69% were actively monitoring at least one purpose. Working Forest Conservation Easements held by public and private organizations have very similar monitoring rates with regards to easement purpose monitoring. Fourteen out of 18 private organizations conducted some form of purpose monitoring (77%), while 11 of 18 (61%) public organizations conducted purpose monitoring. The portion of purposes being monitored varied, but purpose monitoring tended to be more of an “all-or-none” activity than did restriction monitoring. For 17 easements (47%), monitoring was being conducted for 100% of the purposes in these two categories. For 11 of the easements (39%), monitoring was not being conducted for any of these purposes (Figure IV.32).

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100

% of Purposes Monitored in Easement in % Purposesof Monitored 10

0 0 5 10 15 20 25 30 35 40 Easement

Figure IV.32 Percentage of purposes monitored by easement.

Several monitoring experts explained that while they do not specifically monitor for purposes, purposes are indirectly monitored through compliance monitoring process. It is important to note that while many of the restrictions are linked to a purpose set out in an easement (e.g. steep slopes management affecting water quality) compliance monitoring does not necessarily serve as a substitute for purpose monitoring. Despite efforts to distinguish between direct monitoring of purposes and indirect monitoring of purposes via compliance monitoring, it was the impression of the researchers that numerous reports of purpose monitoring were the examples of the latter type.

IV.2.9.b Specific Purposes Monitored / Not Monitored

The purposes that were monitored in the highest percentage of easements in which they occurred were protection of “old growth” (n=5) and “wetland areas” (n=6) (both monitored 100% of the time) and maintenance of “soil productivity/quality” (n=7) (monitored 86% of the time) (Table IV.48).

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Table IV.48 Purposes and level of monitoring.

Easements with Purpose Monitored Purpose Purpose Monitored (%) Wetland area 6 6 100 Old growth 5 5 100 Soil productivity/quality 7 6 86 Forest health/wooded condition 15 11 73 Biological/natural resources 18 12 67 Shoreline/riparian integrity 12 8 67 Habitat for plants 9 6 67 Water quality 20 12 60 Rare species 12 7 58 Habitat for fish/aquatic habitat 14 7 50 Fragile/imperiled habitat 4 2 50 Habitat for terrestrial wildlife 27 13 48 Ecological processes 13 5 38 Biodiversity/natural diversity 12 4 33 Air quality 1 0 0

Protection of “air quality,” “biodiversity” and “ecological processes” were all monitored in a smaller percentage of easements in which they occurred relative to the other purposes. The protection of “air quality” occurred in one easement and was not monitored. Protection of “biodiversity/natural diversity” was monitored 33% of the time. The protection of “ecological processes” was monitored 38% of the time. One reason why these purposes may be monitored less frequently than some of the other purposes may be due to the fact that they are difficult to define and/or measure. The protection of “water quality,” a purpose that might be expected to be significantly easier to measure versus protection of “biodiversity” for example, was only monitored 60% of the time.

IV.2.9.c Monitoring Methods and Techniques

Of the 36 WFCEs that had purposes pertaining to forest health and ambient condition, there were very few (if any) monitoring experts using new techniques or methods to monitor for the purposes. When monitoring, the same techniques used for compliance monitoring appeared to be used for purpose monitoring.

IV.2.9.d Percent of Purposes in Baseline

The average number of purposes that were included in baseline was 50% in a given easement, with a range of 0% to 100%. The protection of “old growth” (n=5) and

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“wetland areas” (n=6) were always considered in baseline documentation (included in baseline in 100% of the easements in which they occurred). The two purposes protecting “habitat for fish” (n=14) and “habitat for terrestrial wildlife” (n=27) were included in baseline in 57% and 52% of the easements in which they occurred, respectively. The protection of “air quality” was never included in baseline, but only appeared in one easement. The protection of “fragile/imperiled habitat” (n=4) and “ecological processes” (n=13) were included in baseline 25% and 38% of the time respectively.

It is important to note that baseline information reported to have been collected for many of these purposes may have been collected in an indirect manner (related to restrictions). For example, the protection of “water quality” was reported as being included in baseline 40% of the time; however it was not the impression of the researchers that all eight of these easements were testing water quality directly.

IV.3 Synthesis of Easement Comparison Study and Monitoring Survey Results

IV.3.1 Introduction

In an effort to guide land conservation professionals as they draft and monitor WFCEs, this research considered two aspects of WFCEs: trends in easement language (easement comparison study) and monitoring techniques (monitoring surveys). Based on the observed trends in easement language and testimonials from monitoring professionals, land conservation professionals need to ensure that connections are being made between easement language and monitoring practices. While some current monitoring reflects these language trends, other monitoring does not. To further demonstrate strong and weak correlations between easement language and monitoring, data from these two studies has been synthesized in the section that follows.

In the discussion below, trends in purposes and restrictions in easement language are compared to their frequency of being monitored and the effectiveness with which they are monitored. A few observations include restrictions that appear to be difficult to

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monitor but that were included in easement language with a high or increasing frequency. These situations might be a result of insufficient consideration of monitoring at the time of easement drafting. Alternatively, easement drafters may have intentionally incorporated such restrictions if potential benefits of their inclusion outweighed negative implications of monitoring difficulties. For example, there may be a psychological effect that could lead to compliance regardless of the ability to monitor a restriction. In addition, even if the probability of detecting a violation were low, a conservation organization may wish to have the ability to take corrective action if a violation were ever detected. Finally, monitoring techniques may evolve over time to make violations more detectable, and easement drafters may therefore want to seize upon an opportunity to negotiate a restriction into an easement despite shortcomings of current monitoring techniques. It is critical that easement drafters consider monitoring at the time of drafting to ensure that if difficult-to-monitor restrictions are included, they are done so consciously and deliberately. To this end, in the following discussion the link between a restriction’s frequency of inclusion in easement language and the ability to monitor the restriction is highlighted.

It was neither the scope nor the purpose of this research to determine if easement purposes influence the inclusion of specific restrictions, or if specific restrictions influence broader easement purposes. However, this section takes a closer look at six areas where the results from the two studies (easement comparison study and monitoring survey) intersect. The areas are: water, forest management, development, third-party monitoring, annual meetings, and recreation.

IV.3.2 Water Protection

The results of the easement comparison study indicated that over the past 18 years WFCEs increasingly mentioned water protection purposes. For example, protection of “water quality” was mentioned as a purpose in just 9.1% of easements between 1985 and 1994 and jumped to 48.5% in age class three (1995 to 1999). It increased again from the time period 2000 to 2003, appearing 52.6% of the time in the most recent age class. Based on the results of the monitoring surveys, water-related purposes (including the

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maintenance of “habitat for fish/aquatic habitat”, the protection of “water quality,” and “wetland area”) were monitored 36% of the time. This 36% monitoring rate of water- related purposes may be reflective of an increase in monitoring over time; however it is important to keep in mind that the monitoring survey results are not based on historical data but rather reflect a “snapshot” of present day monitoring regimes.

As mentioned in the analysis of the monitoring survey, several monitoring experts reported that their purpose monitoring was achieved via restriction monitoring. While every effort was made to distinguish between restriction and purpose monitoring, some respondents felt strongly that their restriction monitoring was an adequate method to “indirectly” monitor easement purposes. With this in mind the monitoring activity of water-related restrictions was looked at more closely.

Water-related restrictions were consistently mentioned in easements over time. Eleven water-related restrictions were included within the water theme used to examine water- related purposes and restrictions throughout the easement comparison study. Of these 11, four water-related restrictions were mentioned in well over 50% of the easements studied. These included the maintenance of “buffers,” which appeared in 70.7% of easements, and the “maintenance of quality water courses,” mentioned in 57.3% of easements. When looking at the results of the monitoring surveys, three of the thirty-four restrictions (15%) that were most often monitored (100% monitoring) related to water. These restrictions included the maintenance of “buffers”, the “maintenance of quality watercourses”, and “steep slope management.” Not only were these restrictions often mentioned in easement language and monitored regularly, they received reasonable (although slightly below the median) monitoring effectiveness ratings (average of a 3.5 out of a 5.0 rating). Effectiveness was defined as the extent to which a monitoring expert could determine (using a specific monitoring technique) if a restriction had been violated, or if a purpose had been achieved.

On the other hand, other water-related restrictions such as the use of “fertilizers” were mentioned less frequently (23.2% of easements), and had lower effectiveness ratings

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(2.43 out of a 5.0 rating). These restrictions appear to be more difficult to monitor. If a restriction on the use of “fertilizers” is critical to achieving the overall purpose of the easement, such as the protection of “water quality,” it may be essential that conservation organizations monitor that restriction in order to verify that the purpose of the easement is being achieved.

If water-related restrictions that are linked to water-related purposes are not being monitored or are monitored ineffectively, it is difficult to make the claim that the purpose of the easement is being achieved. Therefore, restriction/compliance monitoring may be an important part of ensuring that easement purposes are being achieved, but may not be an adequate substitute for purpose monitoring. A more effective approach to monitor for the purpose of the easement may be to conduct direct purpose monitoring. For example, conducting periodic water sample tests may be a more effective way to monitor for water-related purposes such as the protection of “water quality.”

IV.3.3 Forest Management

According to the easement comparison study, forest management purposes were mentioned more frequently (in 82.9% of easements) than purposes for any other theme. While forest management-related purposes remained relatively constant over time, restrictions became more frequent with the passage of time, appearing in 92.1% of WFCEs in the 2000 to 2003-age class. Anecdotal remarks made by respondents during the monitoring survey suggested that WFCEs were originally written to protect forestlands without addressing specific requirements and necessary actions for doing so. A trend toward the incorporation of explicit forest management prescriptions in easement language was noticeable in the easement comparison study. Specifically, the easement comparison study data on the inclusion of forest management prescriptions over time clearly show the increase of forest science and forest management-related language. While many long-standing forest management prescriptions such as the maintenance of “buffers,” appeared with relatively high frequency in the three most recent age classes, other more progressive prescriptions appeared in WFCEs in the most recent age class.

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For example, “maintain wildlife habitat” jumped from appearing in just 42.4% of WFCEs in age class three to 71.1% of WFCEs in age class four.

A review of the monitoring survey data shows that forest management purposes (relating to forest health) had an average monitoring frequency of 77%. When data related to the monitoring of forest management prescriptions was reviewed, it revealed that out of the thirty-four restrictions listed as most monitored (100% monitoring rates), eight (or 24%) were forest management prescriptions. Not one forest management-related restriction was found in the list of restrictions that were least often monitored.

The monitoring effectiveness ratings of forest management-related restrictions were not as straightforward. Ecological assessments such as “maintain downed material” appeared on the list of restrictions that respondents perceived to be least effectively monitored. On the other end of the spectrum, the restriction on “clear-cutting” was among the most effectively monitored restrictions. These results show that forest management-related restrictions are being included more often in easement language and are being monitored at high rates, but their effectiveness ratings vary.

IV.3.4 Development

As reported in the easement comparison study results, development-related purposes were found to occur with moderate frequency (66%), while development-related restrictions appeared in 98.8% of WFCEs. During the easement comparison study, the two development-related purposes identified for the development theme were “restrict development” and protection of “open space values”. Since the monitoring surveys did not address these specific development-related purposes (focus was on purposes relating to ecological health and ambient condition), the results of the monitoring surveys were reviewed to determine the extent to which development-related restrictions were monitored.

Eight of the 34 (24%) most frequently monitored restrictions (monitored in 100% of the easements in which they occurred) related to development. These included “commercial

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and industrial development,” “residential development,” the construction of “buildings”, and restrictions on “roads.” This data reveals that a considerable number of development restrictions were a high monitoring priority. Development-related restrictions also had relatively high perceived effectiveness ratings. Of the restrictions perceived as the most effectively monitored, 54% related to development. These results demonstrate that while development-related purposes occurred with moderate frequency, development-related restrictions were mentioned often, were a high monitoring priority and had relatively high effectiveness ratings.

IV.3.5 Third Party Monitoring

Over time, conservation organizations have increasingly relied on third-party monitoring. Based on the results of the monitoring surveys, 21% of the properties had restrictions that were monitored by some form of third-party monitoring. The two main types of restrictions being monitored by third-parties were those related to the use of chemicals and recreation. As explained in the monitoring survey results, these two categories of restrictions (with the exception of ORVs) were the least often monitored. Therefore, it can be deduced that as easements become more common, monitoring personnel may rely on a third-party for those restrictions that have been omitted from monitoring efforts in the past.

It is important for easement drafters to consider monitoring at the time of drafting to ensure that difficult-to-monitor restrictions are included deliberately. Monitoring by third parties may serve to improve the rate and, potentially, the effectiveness of monitoring these types of restrictions. The monitoring survey results may have a significant implication for future easement drafting. If third parties have the capacity to effectively monitor restrictions that have notoriously been difficult for conservation professionals to monitor, than these restrictions may be included in future easement language with the understanding that a third-party may conduct the most effective monitoring of that restriction in the future.

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IV.3.6 Annual Meetings

The monitoring survey results suggest that adding an “annual meeting” to any monitoring technique will likely increase the effectiveness rating of that technique. While “annual meeting” was rated as the most effective monitoring technique, it was used at a relatively low rate (36% of easements). Those who did use the technique described it as the foundation of a good working relationship. A good relationship with the landowner can be considered preventative monitoring of a property, according to several of the interviewees (See Appendix F). Surprisingly, the easement comparison study results show that explicit requirements for annual meetings only appeared in 31.6% of easements during the period 2000 to 2003. Based on the effectiveness ratings of this technique, and the acclaim it received from monitoring professionals, it seems logical that future easement language include a requirement for periodic meetings with landowners.

IV.3.7 Recreation

Based on the results of the easement comparison study, WFCEs have decreasingly mentioned recreation as an easement purpose. With the exception of “ORV” use, restrictions allowing “active recreation,” “passive recreation,” and “public access” have all experienced similar trends in regards to frequency over time. These three restrictions were mentioned relatively frequently until 1999, and tapered off slightly in the 2000 to 2003 age class. “Active recreation” dropped 14.1%, “passive recreation” dropped 3.9%, and “public access” dropped 3.5%. With this in mind, it is interesting to look at the monitoring of recreation-related restrictions. The monitoring survey results show that many restrictions relating to recreation (with the exception of ORVs) appeared in the “least-monitored” category. When monitoring effectiveness is taken into consideration (regardless of the monitoring technique being used), recreation-related restrictions were among those that had low perceived effectiveness ratings.

The easement comparison study results show that off-road vehicle use has been restricted with decreasing frequency over time. This finding seems a bit puzzling, especially considering the controversy about ORV usage recently. Despite this decline in language

Chapter IV – Results and Analysis 189 restricting usage, ORVs were monitored in 100% of the easements in which they occurred.

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V. RECOMMENDATIONS AND SUGGESTIONS FOR FUTURE RESEARCH

V.1 Recommendations: Introduction

Since the inception of WFCEs, their language and monitoring techniques have received little attention. This study, which examined a large sample of WFCEs, provides a broad, national overview of their current status. The comparison study of easement language and the supporting literature review will serve as a resource for conservation professionals interested in drafting WFCEs. The results of the monitoring surveys warrant specific mention. Based on these results, the authors provide recommendations for the drafting and monitoring of future easements.

V.1.1 Landowner Relations

Include provisions for regular meetings between the landowner/land manager and the monitoring professional. The monitoring survey results indicate that the addition of an “annual meeting” requirement to any monitoring technique will increase the effectiveness rating of that monitoring method. Interviewees stated that regular meetings between the landowner/land manager and the monitoring professional help keep parties abreast of new developments and monitoring concerns and strengthen the overall relationship that is critical to an easement’s success. This increased communication and understanding between parties can prevent easement infractions and maintain easement integrity.

In the course of completing the monitoring surveys, all monitoring professionals who mentioned meeting with the landowner as a monitoring technique were asked if their relationship with the landowner impacted their ratings of effectiveness. Unanimously, the answer was ‘yes.’ This finding forms a compelling argument for focusing on the relationship between the property owner and the holder of the easement. In addition, several survey respondents suggested that conservation organizations in general should not accept or purchase easements from landowners they don’t trust. With recent articles

Chapter V – Recommendations and Suggestions for Future Research 191

focused on abusive transactions or illegal easements (Stephens and Ottoway 2003); trust may be an important issue to help preclude future violations or legal challenges.

Table V.1 below shows that annual meetings were included as a monitoring technique in 31.6% of the easements reviewed during the period 2000-2003. This finding suggests that while this technique is rated as the most effective, it is infrequently used. Therefore, it is recommended that future easement language include a requirement for an annual meeting.

Table V.1 Number and percentage of easements that included the restriction “annual meeting with landowner” by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # %

Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Annual meeting with 0 0.0 0 0.0 6 18.2 12 31.6 landowner

According to several of the monitoring professionals surveyed, a good relationship with the landowner can be considered preventative monitoring of a property. From easement drafting to monitoring the property, a trustworthy relationship with the landowner is important to an easement’s success. One monitoring professional summarized the importance of this relationship: …If you are going to hold an easement and you don’t trust the landowner, you probably shouldn’t get the easement in the first place…if you can’t really work with the landowner to look at the restrictions in the easement and how we proceed forward…if it is always ‘I don’t trust him and I think he’s going to do this, this and this to me’, it would not seem prudent to hold that easement…

Survey respondent indicated that formal and informal meetings with the landowner help to establish and maintain dependable relationships between all parties involved in easement drafting and monitoring. However, this creates an interesting question for the future, as land trusts cannot choose who will buy or inherit the property that has an easement on it.

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V.1.2 Monitoring Techniques

Use a combination of monitoring techniques. Monitoring professionals surveyed indicated that a monitoring method involving a combination of techniques was rated higher on an effectiveness scale than a method employing a single technique. Effectiveness was defined as the extent to which a monitoring expert could determine (using a specific monitoring technique) if a restriction has been violated, or if a purpose has been achieved. The effectiveness rating was based on a 5-point Likert scale (1=ineffective to 5=highly effective). When used alone (39% of easements monitored by this technique alone), ground-level monitoring was rated the lowest in perceived effectiveness (3.1 out of a 5.0 rating), however, ground-level monitoring was a technique used by all but one of the professionals surveyed (97% of easement surveyed). The one easement for which ground-level monitoring was not employed was monitored with a meeting with the landowner as the exclusive technique. The addition of any technique to ground-level monitoring always made the effectiveness rating increase. For example, the combination of ground-level and aerial monitoring (18% of easements monitored by this method) had an average effectiveness of 3.8 out of a 5.0 rating. The addition of satellite imagery to the ground-level and aerial monitoring method made the rating of this monitoring method jump to 4.1 out of a 5.0 rating (3% of easements monitored by this method).

Furthermore, all of the methods that included a meeting with the landowner were rated as more effective than their counterparts. For example, ground-level monitoring and meeting with landowner (4.4 out of a 5.0 rating) was rated substantially higher than ground-level monitoring alone (3.1 out of a 5.0 rating). In four out of five categories of easement size, the most effective monitoring method included the use of a meeting. Thus, where possible, a combination of techniques should be used for maximizing effectiveness in monitoring both restrictions and purposes.

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V.1.3 Monitoring Regime

V.1.3.a Baseline Documentation

Conduct baseline documentation. Without documentation of baseline conditions, detection and enforcement of violations will be difficult or impossible. The results from the monitoring surveys demonstrate that restrictions included in baseline documentation are not only monitored more frequently, but also have higher monitoring effectiveness ratings. The results of the monitoring survey indicated 90% of the easements included in the monitoring survey had baseline documented.

The monitoring survey and easement comparison study results support previous studies (Lind 1991; Rod 2003) that have identified baseline as one of the most important aspects of an effective easement and monitoring program. Documenting baseline conditions allows the grantors to learn about the ecological features of the tract of land, which improves their ability to understand how to maintain the ecological condition of the land. Grantees benefit from baseline documentation by having a foundation from which to build a monitoring program. Additionally, baseline documentation assists easement drafters in considering what restrictions might be necessary for ecosystem and silvicultural protection (e.g. special management areas). Therefore it is recommended that future monitoring programs begin with the documentation of baseline conditions.

V.1.3.b Monitoring Protocol

Use a monitoring protocol. Of the 39 easements in the sample set, 56% had a written monitoring protocol. The average effectiveness rating of restriction monitoring was 3.8 out of a 5.0 rating for easements with monitoring protocols versus 3.5 out of a 5.0 rating for those without. Interviewees indicated that having a copy of the survey instrument (Appendix B), which listed the restrictions and purposes in their easement, would be helpful to use during monitoring efforts in the future. This concise format made it easier for them to understand the set of specific restrictions applied to the property. A monitoring protocol, with specific provisions to follow, is superior to relying on the

Chapter V – Recommendations and Suggestions for Future Research 194 memory of monitoring personnel or simply looking for land uses that “appear” to be inconsistent with the easement.

While the purpose of this research was not to distinguish between the relative effectiveness of the various monitoring protocols used by each organization, twelve protocols were collected and reviewed. From this review, a list of the common components of a monitoring protocol can be developed: • background information about the property (highlighting key features) • baseline documentation report • list of restrictions • procedures for conducting quantitative monitoring • maps/monitoring routes • review of FMPs and/or required permits • third party information.

It is recommended that conservation professionals use a monitoring protocol. The list of components that emerged during the review of 12 documents should be used and expanded upon by conservation organizations to adapt monitoring protocols to their easements in a manner that best suits their monitoring goals and objectives.

V.2 Future Research: Introduction

Although attempts have been made in this study to document information about the use of WFCEs as conservation tools, important information is still lacking. Additional research on the following topics will help to shape and enhance the future use of WFCEs.

V.2.1 Forest Legacy Program

The goal of the Forest Legacy Program (FLP) is to “mitigate forest fragmentation and loss of forested landscape” (Cooksey 2003). This program is becoming increasingly important in securing WFCEs because it provides federal financial resources for the

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acquisition of large and small-scale WFCEs. The graph below (Figure V.1) depicts the growth of the Forest Legacy program based on the easement comparison study results.

Number of Easements 4

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Date Signed)

Figure V.1 Number of easements in each age class (year signed) that were funded by the USDA Forest Legacy program.

While the Forest Legacy Program has been instrumental in the acquisition of a significant percentage of land in the United States, the conservation community should recognize its inherent strengths and weaknesses, which should be explored further. It is clear from the surveys that monitoring professionals struggle to find the financial resources necessary to monitor Forest Legacy funded tracts (Appendix F). The following quote from a conservation professional describes this problem: “What bothers me is looking at how much money we have … put into these easements but how little we do for the maintenance and monitoring…It is all well and good to spend (amount of money) for (name of easement) but unless we can take care of it we’ve really not accomplished the objectives.”

Research aimed at the following questions will help determine the effectiveness of the Forest Legacy Program in relation to other land acquisition initiatives:

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• Are Forest Legacy easements more or less effective in achieving conservation goals as compared to the national average of WFCEs? • The implementation of the Forest Legacy program varies at the state level. What are the fundamental similarities or differences between states? • How can the monitoring of Forest Legacy easements be improved (do funding options exist for monitoring these easements)?

As the Forest Legacy Program enjoys continued appropriations and growth, critical questions about its effectiveness will likely arise. Research aimed at addressing the components of land conservation that are not funded by FLP monies such as stewardship, monitoring, and management activities will benefit the conservation community and strengthen this important program.

V.2.2 Ecological Indicators

As scientific understanding of the environment increases, new monitoring techniques will be developed. There is growing impetus to use ecological indicators (including species demographics, population dynamics, landscape composition, ecological processes, etc…) to monitor ecosystems. Studies about the design of ecosystem monitoring programs show that good programs rely on indicators chosen for their ability to measure system change and integrity (Lindenmayer and Franklin 2002; Noon 2003; Carignan and Villard 2002). Land conservation organizations and agencies should use and expand on research that has been conducted on the use of indicators to measure changes in ecosystems. Research that identifies such indicators and determines how the indicators can be applied to increase the effectiveness of monitoring will likely enhance conservation efforts. The following questions should be used to guide this research: • What ecological indicators can be used to monitor WFCEs? • Will the applicability of these indicators be of regional or local significance? • Will these techniques be sufficient to replace older techniques or will these techniques be supplemental?

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V.2.3 Forest Certification and Third-Party Monitoring

Over the past decade, while certification of sustainable forest products has grown in popularity, research into forest certification has not advanced beyond the preliminary stages. As discussed in Chapter II, the incorporation of forest certification into WFCEs is plausible from the standpoint that the two processes share a critical link, sustainable forestry (Newsom 2002). The two main purposes of sustainable forestry are protecting environmental goals such as biodiversity and protecting future silvicultural enterprises. These purposes coincide with goals of WFCEs. Additionally, forest certification can offer increased flexibility to WFCEs in the way that sustainable forestry practices are mandated.

The results of the easement comparison study and monitoring surveys further Newsom’s work on the practicality of this linkage. The easement comparison study data show that WFCEs already incorporate requirements similar to those required by many forest certification programs, for instance “sustainable forestry practices,” use of a “professional forester.” The data, presented in Table V.2 below, show that while mention of “sustainable forestry practices” is low, it is becoming increasingly common in WFCEs. In the same table, a similar percent increase exists for easements mentioning the need for “professional forester” approval in this time period. As these requirements become more common in easements, forest certification may be increasingly explored. A fundamental challenge in incorporating third-party certification into perpetual easements is that certification programs will change over time and many will cease to exist. Future research should continue to address strategies to account for the potential dissolution of certification programs or an undesirable change in its principles.

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Table V.2 Number and percentage of easements that included “sustainable forestry practices” and “professional forester” as restrictions by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # %

Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionsU IncludedU Sustainable forestry 0 0.0 2 22.2 8 24.2 20 52.6 practices Professional forester 0 0.0 1 11.1 12 36.4 22 57.9

Another advantage of third-party certification is that, due to its requirements, it has the possibility of alleviating a conservation organization’s monitoring burden. Based on the results of the monitoring surveys, many organizations are already relying on third parties to monitor at least a portion of the restrictions in an easement. The two main types of restrictions monitored by third parties were those that related to chemicals and recreation. These two categories of restrictions (with the exception of ORVs) were the least often monitored. Monitoring personnel may continue to rely on third parties for those restrictions that have been omitted from monitoring efforts in the past.

These findings demonstrate the conservation community’s commitment to exploring innovative methods for monitoring easements. Moreover, they show that the conservation community recognizes limitations in their capacity to effectively monitor a tract of land. An examination of the following questions will advance the conservation community’s understanding of the role third-party certification and monitoring can play in land conservation:

• What effects will third-party certification have on monitoring? Should third-party certification be used in lieu of existing monitoring programs, or should it be used as a supplemental technique? • Are there certain restrictions that third-parties can more effectively monitor than conservation organizations?

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V.2.4 Easement Drafting

A review of the literature indicated that successful monitoring programs begin with a well-written easement. While easement language should be flexible enough to accommodate for innovations and advances in monitoring techniques, federal and state regulations, funding, and management practices, easement drafters should use concise language, clarity, and a logical order of standardized categories. There are many templates and model easements from which drafters can build easements to fit their needs. Poorly drafted easements may inhibit effective monitoring and allow for too much individual interpretation which in turn undermines the actual conservation goals and purposes of the easement. As a conservation professional explained during the monitoring survey, easement language should be clear: [The] easement is extremely general and wide open to interpretation, newer documents might be 'tighter'.

A review of case studies addressing the effect that easement drafting has on the overall effectiveness of monitoring programs will help the conservation community more effectively draft easements in the future.

V.2.5 Connecting Easement Purposes to Restrictions

The relationship between easement purposes and restrictions and its implication on monitoring should be researched more thoroughly. Results from the monitoring survey indicated that several monitoring experts consider compliance monitoring to be a sufficient, indirect way to monitor whether or not the purposes of the easement are being achieved. However, compliance monitoring of restrictions (e.g. pollution of water bodies) relating to easement purposes (e.g. water quality) was not consistently conducted.

If restrictions are designed to support the purpose of an easement, then monitoring directly for the achievement of these purposes may be an effective way to evaluate the success of an easement. Water quality, for example, was a purpose indicated in several easements that were included in the monitoring survey study set. While few would argue that requiring buffers and restricting erosion does not support this purpose, periodic

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sampling and testing of the water quality itself might be highly effective in determining success in achieving this purpose. The results of the monitoring survey study indicate that while 69% of organizations were conducting some form of purpose monitoring, relatively few purposes were being directly monitored. Research should be focused on finding cost-effective ways to determine if easement purposes are being achieved. As these monitoring practices are identified, conservation organizations will be more able to use this self-evaluation process to guide the drafting of future easements.

V.2.6 Restrictions that can be Monitored

It is widely accepted that monitoring and enforcement of restrictions is critical to ensure that the purposes of an easement are achieved. Measurable restrictions, chosen to promote the purposes of the easement, may prove to be an essential component of evaluating conservation and management success. Measurable restrictions can also provide the landowner with clear guidelines as to how an infraction will be determined. While researchers did not find instances of litigation on this issue, easements with unmonitored (or difficult to monitor) restrictions may pose a potential weakness when considering future easement defense. On the other hand, inclusion of difficult-to-monitor restrictions may have benefits, including potential psychological effects leading to compliance and the ability to enforce a violation if detected. Easement drafters should be aware of restrictions that are difficult to monitor in order to make informed decisions about their inclusion in easement language.

This study has identified several restrictions that were monitored infrequently and/or ineffectively. Future research should further evaluate the available techniques for monitoring these restrictions and potential new techniques that could be applied.

V.2.7 State and Federal Guidelines (BMPs)

When WFCEs reference best management practices (BMPs), they draw on the expertise of local and state-level agencies that have authored the guidelines (Lind 2001b). The

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graph below (Figure V.2) illustrates the steady increase in reliance upon state and federal BMPs based on the easement comparison study results.

100

30 Percent Mentioned inEach AgeClass 20

0 1985-1989 1990-1994 1995-1999 2000-2003 Easement Age (Date Signed)

Figure V.2 Percentage of easements in each age class (year signed) that referred to "Best management practices" (BMPs).

The incorporation of BMPs in WFCEs may strengthen existing restrictions specific to individual properties, and helps to standardize ecosystem health prescriptions and management techniques. Research has proven that landowners generally have excellent or good compliance with BMPs when they are included in easements (McClenahen, et al. 1999). In addition, BMPs are periodically revised to reflect new scientific and management innovations. Therefore, an easement that references the most up-to-date BMPs, unlike an easement with specific forestry management requirements would continuously apply the most recent practices and technological developments. The use of BMPs has not been examined in detail. As a result, a variety of questions exist:

• Can BMPs be relied upon to the exclusion of forestry provisions inside the easement? Or is it more effective for an easement to reference both?

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• Do all states provide similar BMPs? • What is the enforceability of BMPs compared to forestry provisions inside the easement itself?

V.2.8 Forest Management Plan (FMPs)

A forest management plan provides direction and goals that will subsequently guide conservation efforts on the protected property. According to Lind (2001b), the benefits of using a forest management plan (FMP) include: a decrease in the amount of detail and prescriptive language needed in the easement itself, the provision of clear guidance for monitoring and, flexibility in management that allows for changes over time in technology and landowner needs. These recognized benefits of an FMP may have influenced the positive trend (Table V.4) of the inclusion of a FMP in easements.

Table V.3 Number and percentage of easements that required a “forest management plan” by easement age (year signed). 1985-1989 1990-1994 1995-1999 2000-2003 # % # % # % # %

Total Easements 2 100.0 9 100.0 33 100.0 38 100.0

RestrictionU IncludedU Forest management 1 50.0 3 33.3 26 78.8 32 84.2 plan

In the quote that follows, an interviewee compares two easements while explaining the evolution of easement language and the benefits of FMPs: [Easement A] has more language that deals with unique species or habitats as outlined in the FMPs…in comparing these two easements [Easement A] is much better at dealing with endangered species, forest health and wooded condition [than Easement B] and we can monitor fairly well in regards to compliance and that was kind of the evolution of these easements … As long as you keep it forestland you know, that is a great thing, and we’re way ahead of the game and the rest will take care of itself. Now we’re getting to the point where we are saying well, maybe there are other ways to do this. That’s the direction we are going – where we need to have specific requirements.

Future research should investigate whether easements using FMPs are more effectively monitored than those that do not.

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V.2.9 Case Study Focusing on Exemplary Easements or Organizations

This study, which examined WFCEs in aggregate, provides a broad, national overview of the current status of WFCEs with a focus on trends in easement language and current monitoring techniques. Many questions remain regarding the use of these easements as conservation tools. Case studies of exemplary WFCEs (from all size ranges, easement holders, regions, etc.) and organizations will provide the conservation community with an in-depth examination of: conservation organizational capacity, monitoring techniques, and drafting techniques. Qualitative research with this focus will provide an in-depth analysis of easement drafting and monitoring, which will prove to be invaluable benchmarks for land conservation organizations nationwide.

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VI. SUMMARY OF FINDINGS

This research serves as a first step in gaining an understanding of the legal language used in working forest conservation easements across the country as well as the techniques and methods used to monitor these easements. This study focused on evaluating two aspects of WFCEs: trends in easement language (from the years 1985 to 2003) and current monitoring techniques and methods. This research develops an understanding of the trends in easement language and status of current monitoring.

VI.1 Easement Language Results

Eighty-two WFCEs representing all regions of the country were collected, read, and applied to a matrix that catalogued easement purposes and restrictions. In the reading of these 82 easements the following themes were identified: water, technology/extraction, development, forest management, ecosystems/rare species, and recreation. For each theme, easement language was examined to identify important trends related to region, easement holder, easement age, and easement size.

Table VI.1 below provides a summary of the frequency with which theme-related easement purposes and restrictions appeared in the 82 WFCEs analyzed. It should be noted that these figures are not based on every purpose and restriction for a given theme, but rather on two purposes and four restrictions (the recreation theme was based on one purpose and three restrictions) for each theme as being the most relevant. These purposes and restrictions were identified, with the advice of professional staff at The Nature Conservancy, as being the most relevant for each theme. For a list of the themes and the associated purposes and restrictions, refer to Appendix C.

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Table VI.1 Percentage of 82 easements with purposes and restrictions in each easement language theme and the average number of purposes and restrictions in those easements.

Purpose Restrictions % of Avg # % of Avg # Easements Purposes Easements Restrictions Water 53.7 1.4 90.2 2.5 Technology and extraction 35.4 1.1 91.5 2.1 Development 65.9 1.1 98.8 3.3 Forest Management 82.9 1.6 84.1 2.0 Ecosystem / Rare Species 78.0 1.6 65.9 2.0 Recreation 68.3 1.0 72.0 2.0

Several themes revealed disconnect between the frequency with which purposes and restrictions are mentioned. The literature has suggested that restrictions will be more defensible when linked with a purpose (Lind 2001b). In the “water” and “development” themes the frequency with which restrictions were included was greater than the frequency with which purposes were included. Water restrictions may have been mentioned more frequently because in some cases they achieve other purposes, such as ecosystems and rare species. However, water-related restrictions that cannot be directly tied back to a water-related purpose may not be entirely defensible in court. As mentioned earlier, development restrictions were likely mentioned more frequently than purposes because they satisfy other purposes. Additionally, the purpose section of easements is usually reserved for the conservation goals of the easement. Clearly then, development-related purposes would likely not be mentioned frequently. In some cases, as with the “ecosystem and rare species” theme, the complexity of managing and protecting ecosystems makes it a challenge to identify appropriate restrictions. This is a possible explanation for why purposes were mentioned more frequently than restrictions for this theme.

Careful review of the easement comparison study data showed that several restrictions experienced considerable increases in frequency over time. The mention of “BMPs” has increased over time, likely because they provide a current, standardized, and accepted approach to management and because they have become more prevalent over time. Additionally, as “BMPs” tend to be focused on water quality issues, they may be referred

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to in lieu of multiple water-related restrictions. Restrictions against the “manipulation/alteration of water bodies” have likely increased over time because this is a more easily monitored restriction than other water-related restrictions, for instance “pollution of water bodies.”

Two technology-related restrictions, “mining” and “drilling” were mentioned with increasing frequency over time. This finding may reflect an increasing knowledge and understanding of the detrimental effects of these two activities on ecological integrity. Also, increasing interest among landowners to generate revenue from their land, and a corollary demand for energy exploration, may have spurred easement drafters to explicitly restrict these activities.

Two specific forest management restrictions were mentioned with increasing frequency over time. The first, the use of “FMPs,” follows recommendations from the literature that landowners use this tool to manage forestlands. The use of FMPs allows for flexibility in management and adaptability to changing conditions over time. The second forest management restriction that increased over time, use of a “professional forester,” infuses competent science and legitimacy into forest management. Also, as WFCEs have become more popular in recent years, easement drafters have used this restriction to ensure high standards of forestry. The final restriction in this theme that increased over time was “maintain wildlife habitat.”

The final two restrictions mentioned with considerable increasing frequency appeared in the ecosystems and rare species theme. The first, “introduction of non-native species,” reflects a growing concern over the harmful effects of invasive species and relates directly to the second restriction that increased over time, “ecological restoration.” This restriction likely indicates that conservation organizations are interested in not only protecting existing conservation values but also in restoring degraded ecosystems.

What follows is a series of easement language research questions that guided this research and answers to those questions.

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¾ How has easement language (purposes & restrictions) addressing water issues changed by easement holder, by age, and by size?

Water purposes were mentioned infrequently relative to both other purposes and water- related restrictions. It should be clear then that many water restrictions that occurred in the 82 WFCEs were not necessarily associated with a water-related purpose. Water purposes were found more frequently in privately-held easements (60.5%) than in publicly-held easements (48.7%). The same was true for water restrictions, with 94.7% of privately-held WFCEs mentioning them compared to 87.2% of publicly-held WFCEs. Water purposes experienced an increase in frequency from 11.1% in 1990 to1994 to 60.6% in 1995 to 1999. In comparison, water restrictions experienced a consistently high frequency over time; however, over time the average number of restrictions per easement increased. Water purposes increased in frequency with the size of the easement parcel: they were found most often in the two largest size classes (20,001-50,000 & 50,001 and larger).

¾ How has easement language (purposes and restrictions) addressing technology and extraction issues changed by easement holder, by age, and by size?

Technology and extraction issues were the least frequently mentioned purposes of any theme, appearing in only 35.4% of WFCEs. Restrictions, however, were mentioned in 91.5% of WFCEs, due primarily to the frequency with which WFCEs mentioned mining and drilling. Technology and extraction purposes and restrictions displayed no trend by holder or age. While technology and extraction purposes also displayed no trend with regard to size, the average number of restrictions mentioned increased with easement size.

¾ How has easement language (purposes and restrictions) addressing development issues changed by easement holder, by age, and by size?

While development purposes were only found to occur with moderate frequency (65.9%), development restrictions appeared in 98.8% of WFCEs, mentioned on average 3.3 times per easement. This apparent disconnect is likely explained by the fact that restrictions on

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development often serve other purposes, such as preservation of biodiversity, and “restrict development” is not often considered a purpose in itself. Development purposes and restrictions displayed no trend by holder. Every easement analyzed in the first three age classes mentioned at least one restriction. However, in the 2000 to 2003 age class, the percentage of easements that mentioned at least one restriction (97.4%) was much higher then the other age classes. Development purposes have been consistently mentioned with moderate frequency regardless of the age of the easement. Development restrictions were mentioned with consistently high frequencies across age and size.

¾ How has easement language (purposes and restrictions) addressing forest management issues changed by easement holder, by age, and by size?

Due to the centrality of this issue to WFCEs, forest management purposes were mentioned more frequently (in 82.9% of easements) than purposes for any other theme. Restrictions appeared with high frequency as well, in 84.1% of easements. Privately-held easements were found to mention forest management purposes and restrictions slightly more frequently than those held publicly. Private holders mentioned purposes in 84.2% of WFCEs and restrictions in 86.8% of WFCEs. Public holders mentioned both purposes and restrictions in 79.5% of WFCEs. While purposes remained relatively constant over time, restrictions became more frequent, appearing in 92.1% of WFCEs in the 2000 to 2003 age class. It makes intuitive sense that purposes would remain constant over time because the goals remain the same. Restrictions, however, may have increased in frequency as easement holders found the need to be more prescriptive regarding forest management as new practices are developed and science is advanced. Forest management purposes and restrictions both appeared with relatively high frequency across all size classes.

¾ How has easement language (purposes and restrictions) addressing ecosystems and rare species issues changed by easement holder, by age, and by size?

Ecosystems and rare species purposes were mentioned in 78.0% of easements with an average of 1.6 purposes per easement. Restrictions were mentioned in fewer easements,

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or 65.9%. Privately-held easements mentioned ecosystem and rare species purposes and restrictions more often than publicly-held easements. Privately-held WFCEs addressed purposes in 84.2% of easements and restrictions in 76.3% of easements. Publicly-held WFCEs addressed purposes in 69.2% of easements and restrictions in 53.8% of easements. Ecosystem and rare species purposes and restrictions both experienced pronounced increases over time, perhaps indicating a growing recognition of the importance of ecosystem health in forest management. Purposes and restrictions also increased in frequency with regard to size. This suggests that at larger sizes, WFCEs can address landscape-scale protection that is necessary for ecosystem health.

¾ How has easement language (purposes & restrictions) addressing recreation issues changed by easement holder, by age, and by size?

Recreation purposes and restrictions were found to occur with moderate frequency in the 82 WFCEs analyzed, 68.3% and 72.0%, respectively. Publicly-held easements mentioned recreation purposes and restrictions more often than those held privately, correlating to the likely demand for public recreation and access on easement properties purchased with public funds or held by public agencies. Recreation purposes and restrictions showed no discernible trend over time. Recreation purposes were found more frequently in WFCEs of larger size, probably due to the increased opportunities for recreation.

VI.2 Survey Results

To analyze the monitoring practices used in a sample of the large WFCEs across the country, surveys were conducted for 39 easements. Twenty-three monitoring professionals, some of whom monitored more than one easement in the study set, were interviewed by phone. Each survey was custom designed using the specific purposes and restrictions for each easement. Survey questions addressed the individual monitoring techniques (e.g. ground-level monitoring) and overall method(s) (e.g. combination of meeting with the landowner, ground-level monitoring and aerial monitoring) used to monitor each easement. Moreover, the surveys included questions about the extent to

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which specific easement restrictions and purposes were considered in the monitoring regime. Data was collected regarding whether each restriction was considered in the baseline documentation, how frequently each restriction was monitored, and how effective the monitoring method was in determining whether or not a restriction had been violated. The same information was collected for each easement’s purposes.

¾ How many easements in the study set are being monitored and what is being monitored on these properties?

The results of the survey revealed that a high percentage of easements were monitored to some extent (39 of 45 easements, or 87%). Overall, six easements were not monitored, three of which were signed in 2003 and were without a monitoring regime at the time of inquiry. If these three easements signed in 2003 are removed from the sample, the other three easements that were not monitored represent 7% of the remaining 42 easements. These three easements were all publicly-held, ranged in size from under 10,000 acres to over 100,000 acres, and were signed between 1998 and 2002. A full year had not passed since the signing of one of these easements at the time the survey was conducted.

Within the 39 easements that were surveyed, the average percent of restrictions monitored was 94% with a range of 46% to 100%. For 23 of the 39 easements, 100% of the restrictions in the easement were reported as monitored. On average, easements covering more acreage tended to have fewer restrictions monitored.

Restrictions that were mentioned in easements were compiled and then evaluated to determine the frequency with which each one was monitored. Restrictions that were found in ten or more easements were compiled. From this list, many restrictions that fell into the “most monitored” (100% monitoring) category were related to development, alteration of topography, water, forestry, and agriculture. Forestry-related restrictions appeared 11 times, comprising 32% of the most monitored list. Restrictions pertaining to development were mentioned five times (or 24%). Water-related restrictions appeared five times out of 34 (or 15%). Two agriculture-related restrictions (6%) were also monitored 100% of the time.

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At the other end of the spectrum, restrictions that were monitored in relatively few of the easements, including restrictions relating to recreation and chemicals. Of 17 restrictions falling into the least monitored category, nine (or 53%) related to recreation and three (or 18%) related to chemicals. Several monitoring professionals suggested that the dichotomy between “most monitored” and “least monitored” restrictions was largely driven by the visibility of potential violations. For example, clear-cutting and the construction of buildings would be more visible than an alteration of water chemistry.

¾ What monitoring techniques are being used across the study set?

Ground-level monitoring (walking and/or driving) was by far the most common technique used. Aerial monitoring, meeting with the landowner, and satellite imagery were often used in some combination with ground-level monitoring. See Table VI.2 below for a complete list of the monitoring methods, individual techniques, and how frequently those techniques were used.

Table VI.1 List of monitoring methods and techniques and the frequency of use.

% of Monitoring Methods Easements Easements Ground (walk/drive) 15 38 Ground/aerial/meeting 8 21 Aerial and ground 7 18 Ground and meeting with landowner 4 10 Aerial photos/ground/map/aerial video 1 3 Meeting with landowner 1 3 Satellite/aerial/ground 1 3 Satellite imagery/ground/meeting 1 3 Volunteers walk property/ground (staff) 1 3

Use of Individual Techniques Ground 38 97 Aerial 17 44 Meeting with landowner 14 36 Satellite imagery 2 5

¾ How effective are available monitoring techniques perceived to be?

The study evaluated the perceived effectiveness of the various monitoring methods by interviewing the monitoring personnel. Respondents were asked to rate the effectiveness of the monitoring technique for each restriction (five point scale: 1 = ineffective and 5 =

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highly effective). Ratings of easement effectiveness ranged from 2 to 5, and averaged 3.7. The most noticeable findings included:

• No consistent trends were found across easement size in the monitoring effectiveness rating. It did appear, however, that a lack of aerial and/or satellite imagery on larger properties may have reduced monitoring effectiveness ratings on these properties. • The addition of the monitoring technique “meeting with landowner” increases monitoring effectiveness ratings. • While ground-level monitoring was the most common technique used, it received the lowest effectiveness rating when used alone. However, the addition of both landowner meetings and aerial monitoring to ground-level monitoring increased the average effectiveness from 3.1 to 3.9 out of a 5.0 rating. • There may be a link between those restrictions that are least regularly monitored and those which are rated as least effectively monitored. The frequency with which a restriction is monitored appeared to correspond with the restriction’s monitoring effectiveness rating; in other words, the more frequently a restriction was monitored the more effective it was rated. For example, development-related restrictions, such as structures and roads, were monitored most often and rated as effectively monitored. Similarly, restrictions relating to chemicals/fertilizers and recreation were rated as ineffectively monitored, and these categories comprised the group of restrictions that were least often monitored.

¾ Is monitoring for easement purposes being performed?

In order to determine how monitoring professionals are monitoring for purposes, two categories of purposes were considered: forest health and ambient conditions (e.g. water quality). As in the restriction section of the survey, the purposes listed in each survey were found in the easement language. Of the easements surveyed, 69% received some form of monitoring for purposes in these two categories. There were very few (if any) monitoring experts using new techniques or methods to monitor for the purposes. When

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monitoring, the same techniques used for compliance monitoring appeared to be used for purpose monitoring.

The portion of purposes monitored varied, but purpose monitoring tended to be more of an “all-or-none” activity than did restriction monitoring. For 17 easements (47%), monitoring was being conducted for 100% of the purposes in these two categories. Several monitoring experts explained that these purposes are actually indirectly monitored through the compliance monitoring process. There was no purpose monitoring being conducted for 11 easements (31%).

VI.3 Synthesis of Results

¾ How are changes in easement language over time reflected in current monitoring techniques? (Do monitoring techniques used on WFCE properties reflect changes in easement language over time?)

The exclusive use of ground monitoring was most common for older easements: 83% of easements from 1985 to 1994 used this method. Monitoring for newer easements tended to involve a greater variety of methods/techniques, with the use of video technology and satellite imagery appearing in only the newest category. This relationship may be due to the trend in larger size of newer easements.

¾ What are the significant disconnects between important changes in easement language and shortcomings in current monitoring?

There were apparent discrepancies in trends in easement language and current monitoring efforts. For example, restrictions related to chemicals have been increasingly included in easements; however, many of these restrictions are not monitored, and when they are, they receive low effectiveness ratings. Similarly, restrictions related to non-motorized recreation have increased over time and they also appear to be difficult to monitor. It is unclear from the analysis whether these restrictions are being included more frequently due to insufficient consideration of monitoring during the easement drafting process, or if drafters are consciously including these restrictions to attain future benefits that outweigh

Chapter VI – Summary of Findings 214

negative implications of monitoring difficulties. There were also examples in which trends in language appeared to coincide with monitoring ability. For example, ORV- specific language has decreased over time, which may be related to the fact that when it is included in easements, monitoring professionals rate it as not effectively monitored (2.9 out of a 5.0 rating).

Chapter VI – Summary of Findings

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Best, Constance, and Laurie Wayburn. America’sU Private Forests: Status and U

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interpretation of an evaluation plan.U Ann Arbor: University of Michigan, 2003.

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U theU Land: Conservation Easements Past, Present, and Future.U Washington, D.C.: Island Press, 2000.

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Jenkins, Michael B. and Emily T. Smith. TheU Business of Sustainable Forestry:

U StrategiesU for an Industry in Transition.U Washington D.C.: Island Press, 1999.

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. Working Forest Conservation Easements: A Process Guide for Land Trusts, Landowners, and Public Agencies. Washington, D.C.: Land Trust Alliance, 2001b.

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Madden v. The Nature Conservancy, 823 F. Supp. 815 (D. Mont. 1992).

Mahoney, Julia D., “Perpetual Restrictions on Land and the Problem of the Future.” Virginia Law Review 88 (2002): 739-787.

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Morrisette, Peter M. “Conservation Easements and the Public Good: Preserving the Environment on Private Lands.” Nat. Resources J. 41 (2001): 373-426.

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Pacific Forest Trust. "Statement of The Pacific Forest Trust Submitted to U.S. Senate Committee on Commerce, Science, and Transportation." Hearing on Climate Change Technology and Policy Options, July 10, 2001. Submitted for the hearing record July 19, 2001.

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Chapter VII – Works Cited

APPENDIX A – MATRIX TEMPLATE

MATRIX INSTRUCTIONS:

In all Sections indicate where the reference language is by noting the section number and the easement page number

In Section I designate any purposes found in the following manner: If the Purpose was found in the "Whereas" section use a "w" instead of "x" If the Purpose was found in the "Purposes" section use a "p" instead of "x" If the Purpose was found in the general text of easement (i.e. not in a whereas or purpose section) then use a "g" instead of "x" In Sections II place an x next to each purpose and restriction that is specifically mentioned in the easement. Place an x2 to indicate whether a purpose or a restriction is explicity referred to as a secondary objective. (sections I & II are categorical summaries of sections III & IV…may want to complete III & IV first)

In Section III follow the procedure for Section I

In Section IV place an x next to each restriction that is specifically mentioned in the easement, looking for trends.

In Section V please list each BMP that is mentioned.

In Section VI please place an x to indicate requirements for management plans, oversight, supervision, & notification.

In Section VII place an x next to each forest management requirement/restriction that is specifically mentioned in the easement, looking for trends. Indicate any requirements/restrictions mentioned in BMPs by placing "BMP" and the specific page number to the right of the x. If the easement has areas of specific interest, special management areas, and/or a forest management plan then add a column for analysis and review it separately. For example, if an easement has a wildlife management area with specific restrictions (separate from general easement restrictions), the data can be aggregated later. Just insert a new, separate column and keep the spacing between easements.

221 222

MATRIX: EASEMENT LANGUAGE WFCE: State: Grantee: Grantor: Reviewer: Year: Acres: I. PURPOSES : Ambient Conditions Anthropogenic Pursuits/Concerns/Development Economic Viability Ecosystem Health Recreation II. RESTRICTIONS & RESERVED RIGHTS: Agriculture Change in Topography / Mining Chemicals Developments, Improvements, & Structures Environmental Control Forestry Infrastructure Recreational Activities Signs Utilities Waste Disposal III. PURPOSES INDEX: Anthropogenic pursuits/concerns/development Archeological resources Architectural Aspects Audible effect/ noise reduction Cultural (aspects, heritage) Historical (aspects, resources, listed on register) Open-space values Public education / Awareness Quality of life Restrict Development Scenic (resources, values, visual effect, natural beauty) Scientific value

Appendix A – Matrix Template 223

Ambient conditions Air quality Atmospheric effect Water quality Ecosystem health Biodiversity / Natural diversity Biological / Natural resources Ecological processes Forest health / wooded condition Fragile / Imperiled habitat Habitat for fish/Aquatic habitat Habitat for plants Habitat for terrestrial wildlife Old growth Rare species Shoreline/riparian integrity Soil productivity / quality Wetland area Economic viability Agricultural Resources Exploitable natural resources (minerals, gas, timber, peat) Horticulture resources Silvicultural resources / Quality of Timber Resource Recreation Public Access Recreation opportunities (passive/active) IV. RESTRICTIONS INDEX: Infrastructure ROADS Bridge Culvert Impervious surfaces New road construction Parking lots Roads (in general) Roadway maintenance / upgrade WATER Dams Impoundments

Appendix A – Matrix Template 224

Water delivery systems Water storage & wells Water rights Aircraft landing strip Barriers / Fences Septic System Tanks Trails Utilities Utilities (in general) Communication towers Electricity towers Emergency access Exterior Lighting Generators Public water works Right-of-ways Sewer systems (septic facilities) Solar facilities Utility lines Windmills Wireless Service Facility Signs Signs (in general) Billboards Boundary markers For Sale (property/commercial products on premises) Hunting / trespassing indicators Property indicators Road signs Development, Improvements, & Structures BUILDINGS (in general) BOAT-RELATED Boat ramps Boat storage facility Boathouse Docks CAMPING Camp ground (in general)

Appendix A – Matrix Template 225

Commercial camping accommodations Group camp conference or activity structures Lean-tos Outhouses Recreational camping Research-related camping Warming huts COMMERCIAL & INDUSTRIAL Commercial / Industrial development Maple sugar house Sawmills Windmills DEVELOPMENT RULES Development rights (density) Subdivision HOUSES Residential development / structures Swimming pool Temporary Dwellings Tennis court Trailers STORAGE STRUCTURES Barn Garages Machine sheds Out buildings Sheds Storage facilities OTHER Checkpoints Forest management camps Livestock corrals Logging camps Satellite dishes & Antennae Size limitations on development Temporary Forestry Structures Recreation activities Biking Birdwatching / Wildlife observation

Appendix A – Matrix Template 226

Boating Camping Canoeing / kayaking Fires (camping, cooking, warmth, etc) Fishing Handicapped access Hiking / Snowshoeing Horses Hunting / Trapping Jet skiing ORVs Public access Snowmobiles Traditional non-motorized recreation (backcountry skiing, etc) Vehicles Waste disposal Biodegradable material Burning Burying Dumping (ash, trash, garbage, hazardous / toxic waste) Injection Storage tanks Change in Topography / Mining Diking Ditching Draining Dredging / filling Drilling (oil, natural gas) Excavating Grading Mining (in general) Quarrying Removal of topsoil, sand, gravel, rock, peat, minerals Agriculture Agriculture (in general) Animal husbandry Feed Lots Floriculture Grazing

Appendix A – Matrix Template 227

Horticulture Sale of Products (pick-your-own, maple syrups, etc) Chemicals Agrichemicals Biocides Chemicals (in general) Fertilizers Fungicides Herbicides Insecticides Pesticides Rodenticides

Environmental control Ecological restoration Erosion Genetically Modified Organisms Introduction of non-native animals Introduction of non-native vegetation Manipulation/alteration of water bodies Noise Non-Timber Vegetation removal Pollution of water bodies Special high-elevation Stocking of fish and game species Wildlife / Habitat disturbance V. BMPs

VI. Plans/Supervision/Oversight/Notification Annual conference between Grantee/Grantor Baseline Assessment Report Consultation with State agencies Forest Management Plan, General Management Plan, Stewardship Plan required Approval of Plan required Amendments to management plan Time schedule covered in plan Silviculture prescriptions Notice to Grantee regarding timber harvests

Appendix A – Matrix Template 228

Professional Forester supervision & approval Special Management Areas USDA Forest Legacy Program Written certification & signature VII. Forest Management Requirements Buffers of water bodies Clear-cutting / liquidation of forests Consistent with goals/objectives of easement DBH specifications Firewood harvesting Forest diversity Forest inventory (stand descriptions, etc) Forest restorations Grading/Change in topography Growing, stocking, cutting, and sale of any type of trees Harvest less then % of annual growth Harvest no more than annual growth Landing yards size and required grading schedule Long term objectives and management goals Maintain diversity of stand age Maintain downed material Maintain quality watercourses Maintain wildlife habitat Map of harvested areas and protected natural features Native plant & animal management practices No plantation forestry Prescribed burn program Protection of Biodiversity Review restrictions after designated time period Roads and skid trail restrictions Salvage Timber Rights Sound/generally accepted practices Steep Slopes management Strategies to protect natural resources Sufficient forest regeneration Sustainable Forestry Practices Timber harvest goals and standards Vertical structure

Appendix A – Matrix Template

APPENDIX B – SURVEY TEMPLATE

WORKING FOREST CONSERVATION EASEMENT QUESTIONNAIRE DETERMINING TRENDS IN MONITORING AND LEGAL LANGUAGE

As mentioned in my letter sent on LETTER DATE , I am conducting research with six other graduate students in the School of Natural Resource and Environment at the University of Michigan. Your response to the survey will help to inform our project which aims to address the following questions:

What are the monitoring techniques being used by holders of Working Forest Conservation Easements? Which monitoring techniques are most effective? Are monitoring techniques linked to the goals and purposes specified in easement language?

I will call you on DATE at TIME AM/PM to conduct the phone survey and record your answers. Please feel free to look over the survey and write down your answers in advance. We will only report aggregate data--no information specific to an individual organization will be shared without prior consent. If you have questions about this survey or our research, I can be reached at PHONE NUMBER or EMAIL . I look forward to speaking with you.

NAME School of Natural Resources and Environment, University of Michigan

I. Holder Information

1. Name of Organization: 2. Respondent Contact Information: (name) (phone #) (email) (address) 3. Organization’s Geographic Area of Focus: 4. WFCEs Held by Organization (#): 5. Acres Protected by WFCEs (#): 6. Annual Stewardship Budget: 7. Monitoring Personnel(#): 8. Today's Date:

II. EASEMENT NAME Easement Yes No 1. Do you have a monitoring protocol for this easement? 2. Would you be willing to provide us with a copy of this protocol?

229 230

III. EXPLANATION AND DIRECTIONS FOR COMPLIANCE MONITORING SECTION In reviewing the EASEMENT NAME WFCE, we noted the restrictions that fit into the categories listed below. For each category, please: 1. Indicate the methods used to monitor for compliance (For example: measuring DBH for forest management). 2. Indicate if this monitoring method was used to determine baseline information about the site. 3. Indicate monitoring frequency on the five-point scale. (5-point scale: more than twice annually, twice annually, annually, once every two years, less than once every two years). 4. Indicate monitoring effectiveness (the certainty to which you can determine if this restriction has been violated).

= 1, Ineffective EFFECTIVENESS highly effectivehighly 5 = 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

FREQUENCY

More than2X / Year 2X / Year 1X/ Year 1X 2 Yrs/ Yrs 1X / 2 Less than

BASELINE

Yes No

RESTRICTION METHOD(S) MONITORING

Utilities Trails Yes No Tanks Yes No Septic System Yes No BarriersFences / Yes No Aircraft landing strip landing Aircraft YesWireless Service Facility No Yes No Water rightsWindmills Yes No Yes No (irrigation & sprinkler systems)Water storage & wells Yes linesUtility No Yes No Water systems delivery Yes No works water Public Yes No Impoundments YesSolar facilities No Yes No Dams (septic systems Sewer facilities) Yes No Yes No Parking lots YesRight-of-ways No Yes No Impervious surfacesImpervious Yes No Generators Yes No CulvertExterior Lighting Yes No Yes No BridgeEmergency access Yes No Yes No Roadway maintenance / maintenance upgradeRoadway Yes No Electricity towers Yes No New roadNew construction Yes No Communication towers Yes No Roads (in general) YesUtilitiesgeneral) (in No Yes No Infrastructure

Appendix B – Survey Template 231

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

Yes No YesYes No Yes No YesYes No Yes No Yes No Yes No No No Yes No YesYesYes No No No Yes No

Signs Signs (ingeneral) BUILDINGS (in general) ramps Boat Camping Yes (in general) No Boat storage facilit camping Commercial accommodations conferenceGroupor camp activity structures Lean-tos Outhouses Recreational camping Research-related camping Warming huts Billboards Yes No BOAT Boathouse Docks CAMPING Boundary markers Yes No For Sale (property/commercial premises) on products / trespassingHunting indicators Yes No Property indicatorsProperty Yes No Road signs Yes No Development, Improvements, & Structures Improvements, Development,

Appendix B – Survey Template 232

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

YesYes No Yes No Yes No Yes No No YesYesYes No Yes No Yes No No Yes No YesYes No Yes No Yes No Yes No No Yes No YesYes No Yes No Yes No Yes No No No

COMMERCIAL & INDUSTRIAL & COMMERCIAL / Industrial Commerical development (density) Development rights Residential development / structures Barn Checkpoints Maple sugar house SawmillsWindmills DEVELOPMENT RULES Subdivision HOUSES pool Swimming Dwellings Temporary court Tennis Trailers STRUCTURES STORAGE Out Buildings Garages sheds Machine Sheds Storage facilities OTHER YesForest management camps corrals Livestock No camps Logging Satellite dishes & Antennae development on limitations Size Structures Forestry Temporary Yes No

Appendix B – Survey Template 233

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

YesYes No YesYes No Yes No No No YesYesYes No No Yes No No YesYesYes No Yes No Yes No Yes No Yes No Yes No No No YesYesYes No No No YesYes No No

Recreation activities Biking material Biodegradable Birdwatching / Wildlife observation Boating Camping Canoeing / kayaking etc) warmth, cooking, Fires (camping, Yes No Burning Burying (ash,Dumping trash, garbage, hazardous/ toxic waste) Injectio Fishing Hiking / Snowshoeing Horses / TrappingHunting Jet skiing Handicapped access ORVs Public access Traditional non-motorized etc) recreation skiing, (backcountry Snowmobiles Vehicles Waste disposal Storage tanks

Appendix B – Survey Template 234

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No

Agriculture Removal of topsoil,Removal sand, gravel, rock, peat, minerals Chemicals GradingMining (ingeneral) Quarrying Yes Yes No No Sale of Products (pick-your-own, etc) syrups, maple Rodenticides Excavating Horticulture Pesticides Drilling (oil,natural gas) Grazing Insecticides Dredging / filling Feed LotsFloriculture Yes No FungicidesHerbicides Yes No Draining Fertilizers Ditching Animal husbandr Animal AgrichemicalsBiocides Yes No Change in Topography/ Mining Diking general) (in Agriculture (ingeneral)Chemicals Yes No Yes No

Appendix B – Survey Template 235

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 YesYes No Yes No No Yes No Yes No YesYes No Yes No YesYes No Yes No No Yes No Yes No Yes No No YesYesYes No No Yes No Yes No Yes No No Clearcutting / liquidation of forests Consistent goals/objectives with of easement DBH specifications Yes No Environmental control restorationEcological Yes bodies water of Buffers No Erosion Genetically Modified Organisms Yes No Firewood harvesting diversityForest Yes No Introduction of non-native vegetation Introduction of non-native animals Manipulation/alteration of water bodies Noise bodies water of Pollution high-elevation Special Stocking of fish and speciesgame Non-Timber Vegetation removal disturbance Habitat / Wildlife Forest Management Requirements Forest inventory (stand etc) descriptions, Forest restorations Grading/Change in topography Growing, stocking, cutting, and sale of type of any trees Harvest lessofthen annual % growth Harvest no more than annual growth

Appendix B – Survey Template 236

1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No

m tercourses Yes No

Vertical structure Yes No Sustainable Forestry Practices Forestry Sustainable Timber harvest goals and standards Yes No Sufficient forest regeneration forest Sufficient Steep Slopes managementStrategies to protect natural resources Yes No (a forest crop or stand raised raised crop or stand forest (a artificially, oreither sowing by planting) Prescribed burn progra Salvage Timber Rights practices accepted Sound/generally Yes No No plantation forestry No plantation forestry Roads and skid trail restrictions Native plant management & animal practices ProtectionBiodiversity of after restrictions Review period time designated Yes No Maintain diversity of stand Maintain age diversity materialMaintain downed wa Maintain quality habitat Maintain wildlife and areas harvested Map of protected natural features Yes Yes No Yes No No Long term objectives Long term and goalsmanagement Forest Management Requirements required and size yards Landing grading schedule

Appendix B – Survey Template 237

IV. EXPLANATION AND DIRECTIONS FOR GOALS MONITORING SECTION In addition to compliance monitoring, our research aims to determine whether any easement holders are monitoring for the achievement of goals/purposes (not specific restrictions). For example, conducting water sampling to test for an easement goal/purpose of maintaining water quality. We have reviewed the goals/purpose sections of the EASEMENT NAME WFCE and listed a subset of them below. For each goal please: 1. Indicate the monitoring method(s) that you use to determine if this goal/purpose is being achieved. 2. Indicate if this monitoring method was used to determine baseline information about the site. 3. Indicate monitoring frequency on the five-point scale. (5-point scale: more than twice annually, twice annually, annually, once every two years, less than once every two years).

Ineffective = 1, = Ineffective EFFECTIVENESS highly effective = 5 effective = highly 1 2 3 4 5 4 3 2 1 5 4 3 2 1 1 2 3 4 5 4 3 2 1 5 4 3 2 1 1 2 3 4 5 4 3 2 1 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1 2 3 4 5 4 3 2 1 1X / 2 Yrs/ 2 1X Yrs 1X / 2 r 1X/ Yea r FREQUENCY More thanMore / Year2X 2X / Yea Less than BASELINE (Circle One) (Circle Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No GOAL RESTRICTION) MONITORING METHOD(S) (NOT A (NOTSPECIFIC A Ambient conditions Ambient Air quality Air diversity Natural / Biodiversity Atmospheric effect Biologicalresources / Natural Water quality habitat Habitat for fish/Aquatic Ecosystem health Ecosystem Habitat for plants Habitat for terrestrial wildlife terrestrial for Habitat Wetland area Forest health/wooded condition health/wooded Forest Ecological processes Ecological Rare species Old growth Old Soil productivity / quality productivity Soil Shoreline/riparian integrity Shoreline/riparian Fragile / Imperiled habitat Imperiled / Fragile

Appendix B – Survey Template

APPENDIX C – MATRIX DATA ORGANIZED BY THEMES

Aggregate Timeframe Holder Size (acres) Region Mentioned Not Mentioned Total 1985-1989 1990-1994 1995-1999 2000-2003 Public Private Joint 1,000-5,000 5,001-10,000 10,001-20,000 20,001-50,000 50,001 and > Northeast Southeast Midwest Northwest Southwest I. WATER A. Purposes 1. Water quality 37 45 82 0 1 16 20 16 20 1 19 2 7 4 5 25 4 0 3 5 2. Shoreline/riparian integrity 24 58 82 0 0 9 15 13 10 1 12 4 4 1 3 14 1 0 3 6 3. Habitat for terrestrial and 24 58 82 0 2 10 12 11 12 1 12 4 3 3 2 15 1 0 7 1 aquatic wildlife 4. Wetland area 14 68 82 0 1 6 7 5 8 1 6 0 3 1 4 11 1 0 1 1 B. Restrictions 1. Water infrastructure (dams, 43 39 82 1 3 14 25 19 24 0 24 5 7 4 3 22 4 0 10 7 impoundments, delivery systems, irrigation, storage, and wells) 2. Erosion 43 39 82 1 3 18 21 18 23 2 25 5 4 4 5 29 4 2 6 2 3. Dredging 38 44 82 0 0 15 23 12 23 3 28 3 3 2 2 19 4 2 9 4 4. Draining 11 71 82 0 0 4 7 1 10 0 9 0 1 1 0 3 1 1 5 1 5.Diking 973820027 270 60120 31221 6. Water rights 14 68 82 0 0 7 7 4 9 1 9 1 1 1 2 2 1 0 6 5 7. Manipulation/alteration of 47 35 82 0 1 19 27 17 26 4 32 3 6 4 2 26 4 2 9 6 water bodies 8. Pollution of water bodies 37 45 82 2 3 17 15 13 22 2 29 0 3 4 1 20 2 2 9 4 9. Boat-related structures 18 64 82 0 1 4 13 11 7 0 4 1 5 5 3 16 0 1 1 0 10. Grading 20 62 82 0 0 10 10 9 9 2 11 3 1 3 2 15 2 1 2 0 11. Steep slopes management 31 51 82 0 2 13 16 13 14 4 19 4 5 1 2 20 4 1 5 1 12. Ditching 18 64 82 0 0 4 14 9 9 0 12 2 2 1 1 9 2 1 2 4 II. TECHNOLOGY / EXTRACTION A. Purposes 1. Restrict development 17 65 82 1 3 7 6 9 6 2 8 2 2 3 2 15 2 0 0 0 2. Open space values 43 39 82 1 4 15 23 19 21 3 22 7 8 3 3 23 3 1 10 6 3. Exploitable natural resources 15 67 82 0 1 3 11 6 8 1 7 2 2 2 2 10 1 1 3 0 B. Restrictions 1. Alternative energy generators 12 70 82 0 0 7 5 8 4 0 6 1 1 2 2 6 0 0 5 1 2. New communication towers 33 49 82 0 3 11 19 23 8 2 14 6 6 4 3 23 2 2 3 3 3. Mining 70 12 82 2 5 28 35 32 33 5 40 8 10 6 6 48 4 1 10 7 4. Drilling 45 37 82 0 3 18 24 18 24 3 28 6 5 3 3 27 4 1 7 6 5. Utilities 30 52 82 0 2 12 16 14 16 0 18 2 3 3 4 14 3 1 7 5 III. DEVELOPMENT A. Purposes 1. Restrict development 17 65 82 1 3 7 6 9 6 2 8 2 2 3 2 15 2 0 0 0 2. Open space values 43 39 82 1 4 15 23 19 21 3 22 7 8 3 3 23 3 1 10 6 B. Restrictions 1.Roads 748 82272936353454271267 5042117 2. Water infrastructure (dams, 43 39 82 1 3 14 25 19 24 0 24 5 7 4 3 22 4 0 10 7 impoundments, delivery systems, irrigation, storage, and wells) 3. Utilities 30 52 82 0 2 12 16 14 16 0 18 2 3 3 4 14 3 1 7 5 4. Buildings 59 23 82 2 8 25 24 27 28 4 35 5 8 6 5 40 4 1 8 6 5. Commerical/industrial 67 15 82 2 4 29 32 30 33 4 39 6 9 7 6 44 4 2 10 7 development 6. Residential development 70 12 82 2 5 29 34 34 32 4 40 7 11 7 5 48 4 2 10 6

238 239

2. Baseline assessment 22 60 82 2 1 5 14 12 9 1 10 3 2 3 4 13 1 1 4 3 3. Best management practices 48 34 82 0 3 18 27 23 20 5 26 7 6 4 5 36 4 2 2 4 (BMPs) 4. Consult with state agencies 17 65 82 0 0 7 10 9 7 1 10 1 4 1 1 15 0 0 2 0 5. Forest management plan 62 20 82 1 3 26 32 26 31 5 35 7 8 7 5 41 4 2 9 6 6. Stewardship plan a. Approval of plan required 33 49 82 0 2 15 16 12 19 2 22 3 3 3 2 26 2 1 2 2 b. Amendments to management 32 50 82 0 2 12 18 16 15 1 19 2 5 5 1 24 2 2 4 0 plan c. Time schedule covered in 18 64 82 0 0 7 11 11 7 0 7 1 3 5 2 16 0 1 1 0 plan d. Silviculture prescriptions 12 70 82 0 0 6 6 5 6 1 6 1 1 2 2 9 1 0 2 0 7. Notice to grantee regarding 14 68 82 0 1 5 8 4 10 0 9 0 0 3 2 12 0 1 1 0 timber harvests 8. Professional forester 35 47 82 0 1 12 22 14 19 2 17 3 5 4 6 28 1 0 6 0 9. Special management area 16 66 82 0 1 8 7 5 10 1 8 2 2 2 2 12 1 0 3 0 (SMA) 10. USDA Forest Legacy Program 17 65 82 0 2 4 11 14 1 2 9 5 2 1 0 12 1 1 0 3

11. Written certification & 280820002 110 10001 20000 signature C. Restrictions: Water quality issues 1. Buffers of water bodies 58 24 82 0 6 27 25 29 25 4 34 6 9 6 3 42 3 1 5 7 2. Maintain quality watercourses 47 35 82 0 3 22 22 23 19 5 26 6 6 3 6 37 2 0 3 5

D. Restrictions: Wildlife issues 1. Maintain wildlife habitat 42 40 82 0 1 14 27 14 25 3 21 5 5 5 6 25 3 1 7 6 2. Native plant & animal 29 53 82 0 0 12 17 14 14 1 15 2 4 4 4 18 1 0 6 4 management practices 3. Protection of biodiversity 16 66 82 0 1 3 12 6 10 0 5 2 4 2 3 13 2 0 1 0 E. Restrictions: Forest health issues 1. Protection of biodiversity 16 66 82 0 1 3 12 6 10 0 5 2 4 2 3 13 2 0 1 0 2. Forest diversity 23 59 82 0 1 8 14 6 14 3 10 3 2 3 5 15 1 0 5 2 3. Forest restorations 30 52 82 2 2 10 16 19 11 0 16 3 4 2 5 17 3 0 6 4 4. Maintain diversity of stand age 13 69 82 0 0 5 8 5 7 1 9 1 0 2 1 6 0 0 4 3

5. Maintain downed material 15 67 82 0 0 5 10 6 7 2 12 1 1 0 1 6 0 1 3 5 6. Prescribed burn program 17 65 82 0 1 6 10 5 12 0 12 2 2 1 0 1 4 1 7 4 7. Sustainable forestry practices 30 52 82 0 2 8 20 11 15 4 16 4 4 1 5 21 3 1 4 1 8. DBH specifications 19 63 82 0 1 6 12 10 8 1 11 2 2 3 1 11 0 1 3 4

Appendix C – Matrix Data Organized by Theme

240

7. Growing, stocking, cutting, and 24 58 82 0 3 7 14 18 6 0 15 2 4 1 2 19 1 0 1 3 sale of any type of trees 8. Harvest less than % annual 136982006 7 751 61222 71041 growth 9. Landing yards size and required 31 51 82 0 3 11 17 16 10 5 17 3 5 4 2 23 2 2 1 3 grading schedule 10. Long term objectives and 17 65 82 0 1 7 9 4 11 2 8 1 3 2 3 15 0 0 2 0 management goals 11. Map of harvested areas and 19 63 82 0 0 6 13 7 12 0 10 1 2 4 2 15 0 2 2 0 protected natural features 12. No plantation forestry 1 81 82 0 0 0 1 0 1 0 0 0 0 1 0 1 0 0 0 0 13. Protection of biodiversity 16 66 82 0 1 3 12 6 10 0 5 2 4 2 3 13 2 0 1 0 14. Review restrictions after 15 67 82 0 0 8 7 5 9 1 7 0 3 3 2 13 1 0 1 0 designated time period 15. Roads and skid trail restrictions 60 22 82 0 7 23 30 31 24 5 33 7 8 6 6 47 4 2 3 4

16. Salvage timber rights 22 60 82 0 2 11 9 7 14 1 15 0 4 0 3 16 2 0 4 0 17. Sound/generally accepted 22 60 82 0 0 12 10 16 4 2 8 4 3 4 3 19 0 0 2 1 practices 18. Steep slopes management 31 51 82 0 2 13 16 13 14 4 19 4 5 1 2 20 4 1 5 1 19. Strategies to protect natural 775820034 421 11212 61000 resources 20. Sufficient forest regeneration 21 61 82 0 1 7 13 12 8 1 9 3 2 3 4 15 1 0 2 3 21. Timber harvest goals and 30 52 82 0 2 15 13 12 16 2 17 3 6 1 3 16 3 0 5 6 standards 22. Vertical structure 4 78 82 0 0 2 2 0 3 1 3 0 0 0 1 2 0 0 1 1

Appendix C – Matrix Data Organized by Theme

241

12. Forest diversity 23 59 82 0 1 8 14 6 14 3 10 3 2 3 5 15 1 0 5 2 13. Native plant & animal 29 53 82 0 0 12 17 14 14 1 15 2 4 4 4 18 1 0 6 4 management practices 14. Maintain wildlife habitat 42 40 82 0 1 14 27 14 25 3 21 5 5 5 6 25 3 1 7 6 VI. RECREATION A. Purposes 1. Recreation and public access 56 26 82 1 8 24 23 29 22 5 29 5 9 6 7 50 2 2 2 0 B. Restrictions 1. Active recreation 49 33 82 2 5 22 20 26 19 4 25 7 8 5 4 35 3 0 6 5 2.Passive recreation 5527822 5232529224 326 9 4 4 414 0 5 5 3. Public access 51 31 82 2 3 22 24 25 22 4 29 7 7 3 5 32 5 0 7 7 4. Off-road vehicles (ORVs) 30 52 82 2 4 13 11 18 9 3 21 2 4 2 1 23 0 1 3 3 5. Snowmobiles 47 35 82 2 5 20 20 24 19 4 30 4 5 4 4 39 0 1 4 3 6. Vehicles 39 43 82 2 6 16 15 20 16 3 27 2 5 4 1 27 1 1 7 3 7. Non-motorized recreation 56 26 82 2 5 21 28 28 24 4 31 5 8 6 6 43 3 0 5 5 8. Camp fires 18 64 82 1 4 10 3 11 7 0 10 1 3 2 2 16 0 0 2 0

Appendix C – Matrix Data Organized by Theme

242

5. Cultural/historical aspects 26 56 82 0 1 9 16 17 8 1 12 6 7 0 1 15 2 1 3 5 6. Ecological condition 47 35 82 1 5 18 23 20 22 5 25 4 8 4 6 36 3 2 2 4 7. Habitat for plants 29 53 82 0 3 9 17 11 17 1 19 3 4 2 1 16 5 0 4 4 8. Habitat for terrestrial wildlife 61 21 82 0 5 27 29 26 30 5 33 7 10 4 7 40 5 0 9 7 9. Public education/awareness 18 64 82 0 1 7 10 7 8 3 8 3 3 2 2 13 1 2 2 0 10. Quality of life 1 81 82 0 0 0 1 0 1 0 1 0 0 0 0 1 0 0 0 0 11. Scenic resources/values 59 23 82 0 6 26 27 27 28 4 34 7 11 4 3 39 5 2 7 6 12.Scientific value 1468820149 482 64211 71240 B. Restrictions 1.Agriculture 3646822 1161713212 243 3 2 4 212 1 8 4 2. Barriers/fences 49 33 82 2 5 16 26 26 22 1 28 4 7 5 5 30 3 1 9 6 3. Biodegradable material 15 67 82 0 1 5 9 10 5 0 4 2 3 2 4 12 1 0 2 0 4.Camping 6220822 6272732264 346 9 6 7 472 0 9 4 5. Chemicals 17 65 82 0 1 4 12 6 11 0 8 1 3 4 1 6 1 2 4 4 6.Commerical signage 5923822 4252829264 357105 2 414 2 5 7 7. Development limitations & 156782015 9 690 92112 73041 rights (density) 8. Directional signage 10 72 82 0 0 8 2 4 4 2 7 2 0 0 1 8 0 0 0 2 9. Ditching 18 64 82 0 0 4 14 9 9 0 12 2 2 1 1 9 2 1 2 4 10. Dumping - burrning - burying - 766 82283135343844471366 5152117 injecting 15. Excavating 45 37 82 0 1 17 27 15 26 4 27 4 7 3 4 27 4 1 8 5 16. Exterior lighting 15 67 82 1 2 7 5 11 4 0 8 1 3 2 1 14 0 0 0 1 17. Feed lots 17 65 82 0 0 6 11 6 11 0 12 2 1 1 1 3 1 1 8 4 18. Fertilizers 39 43 82 2 5 12 20 21 16 2 17 4 8 6 4 25 2 2 6 4 19.Generators 676820006 330 30102 40020 21. Grazing 27 55 82 1 0 11 15 12 15 0 19 3 1 2 2 10 1 1 8 7 23. Non-timber vegetation removal 29 53 82 1 2 10 16 15 14 0 15 3 4 4 3 22 1 1 3 2

24. Other impervious surfaces 61 21 82 2 6 24 29 31 25 5 33 6 11 6 5 48 3 2 3 5 25. Property indicators 40 42 82 1 3 18 18 19 17 4 25 5 6 3 1 29 4 0 0 7 26. Removal of topsoil, sand, 68 14 82 2 7 27 32 33 30 5 42 6 11 4 5 48 4 1 9 6 gravel, rock, peat, etc 27. Right of ways 28 54 82 0 2 14 12 11 13 4 19 5 2 1 1 22 2 0 2 2 29. Sewer systems 25 57 82 1 4 12 8 13 12 0 12 2 5 2 4 20 0 0 3 2 30. Special high-elevation 6 76 82 0 0 2 4 2 4 0 3 0 2 1 0 6 0 0 0 0 31. Storage facilities 25 57 82 1 1 9 14 12 13 0 11 4 6 1 3 12 3 1 5 4 32. Subdivision 68 14 82 2 3 29 34 29 35 4 37 7 11 7 6 44 4 2 11 7 33. Utility lines/towers 52 30 82 1 6 21 24 25 23 4 31 4 9 4 4 39 1 1 6 5 34. Waste storage areas 34 48 82 0 5 13 16 16 15 3 23 4 2 1 4 23 1 0 5 5 35.Water works 1072822341 730 61111 90001

Appendix C – Matrix Data Organized by Theme

APPENDIX D – MATRIX THEME DATA

Theme Summary

Table D.1 Percentage of 82 easements with purposes and restrictions in each easement language theme and the average number of purposes and restrictions in those easements.

Purpose Restrictions % of Ave # % of Ave # Easements Purposes Easements Restrictions Water 53.7% 1.4 90.2% 2.5 Technology 35.4% 1.1 91.5% 2.1 Development 65.9% 1.1 98.8% 3.3 Forest Management 82.9% 1.6 84.1% 2.0 Ecosystem / Rare Species 78.0% 1.6 65.9% 2.0 Recreation 68.3% 1.0 72.0% 2.0

Water Table D.2 Number and percentage of 82 easements that included at least one water- related purpose or restriction, by easement holder. Privately Publicly Water Purposes by Holder Held Held Jointly Held Easements by Holder 38 39 5 Easements with at least one purpose 23 19 2 % of easements with at least one purpose 60.5% 48.7% 40.0% Average number of purposes 1.3 1.5 1.0 Water Restrictions by Holder Easements with at least one restriction 36 34 4 % of easements with at least one restriction 94.7% 87.2% 80.0% Average number of restrictions 2.7 2.3 2.5 Water purposes (2) include: water quality, shoreline/riparian integrity. Water restrictions (4) include: water infrastructure, manipulation/alteration of water bodies, pollution of water bodies, buffers.

Table D.3 Number and percentage of 82 easements that included at least one water-related purpose or restriction, by age of easement.

Water Purposes by Age 1985-1989 1990-1994 1995-1999 2000-2003 Easements in Age Class 2 9 33 38 Easements with at least one purpose 0 1 20 23 % of easements with at least one purpose 0.0% 11.1% 60.6% 60.5% Average number of purposes NA 1.0 1.3 1.5 Water Restrictions by Age Easements with at least one restriction 2 7 31 34 % of easements with at least one restriction 100.0% 77.8% 93.9% 89.5% Average number of restrictions 1.5 1.9 2.5 2.7 Water purposes (2) include: water quality, shoreline/riparian integrity. Water restrictions (4) include: water infrastructure, manipulation/alteration of water bodies, pollution of water bodies, buffers.

243 244

Table D.4 Number and percentage of 82 easements that included at least one water-related purpose or restriction, by size of easement. 1,000- 5,001- 10,001- 20,001- Water Purposes by Size 5,000 10,000 20,000 50,000 > 50,000 Easements in Size Class 47 8 13 7 7 Easements with at least one purpose 23 4 7 4 6 % of easements with at least one purpose 48.9% 50.0% 53.8% 57.1% 85.7% Average number of purposes 1.3 1.5 1.6 1.3 1.3 Water Restrictions by Size Easements with at least one restriction 44 7 11 7 5 % of easements with at least one restriction 93.6% 87.5% 84.6% 100.0% 71.4% Average number of restrictions 2.7 2.0 2.3 2.6 1.8 Water purposes (2) include: water quality, shoreline/riparian integrity. Water restrictions (4) include: water infrastructure, manipulation/alteration of water bodies, pollution of water bodies, buffers.

Technology and Extraction Table D.5 Number and percentage of 82 easements that included at least one technology and extraction- related purpose or restriction, by easement holder.

Technology and Extraction Purposes by Holder Privately Held Publicly Held Jointly Held Easements by Holder 38 39 5 Easements with at least one purpose 12 15 2 % of easements with at least one purpose 31.6% 38.5% 40.0% Average number of purposes 1.2 1.0 1.5 Technology and Extraction Restrictions by Holder Easements with at least one restriction 35 35 5 % of easements with at least one restriction 92.1% 89.7% 100.0% Average number of restrictions 2.2 2.1 1.6 Technology purposes (2) include: restrict development, exploitable natural resources. Technology restrictions (4) include: utilities, alternative energy generators, drilling, and mining.

Table D.6 Number and percentage of 82 easements that included at least one technology and extraction- related purpose or restriction, by age of easement.

Technology Purposes by Age 1985-1989 1990-1994 1995-1999 2000-2003 Easements in Age Class 2 9 33 38 Easements with at least one purpose 1 4 10 14 % of easements with at least one purpose 50.0% 44.4% 30.3% 36.8% Average number of purposes 1.0 1.0 1.0 1.2 Technology Restrictions by Age Easements with at least one restriction 2 6 31 36 % of easements with at least one restriction 100.0% 66.7% 93.9% 94.7% Average number of restrictions 1.0 1.7 2.1 2.2 Technology purposes (2) include: restrict development, exploitable natural resources. Technology restrictions (4) include: utilities, alternative energy generators, drilling, and mining.

Appendix D – Matrix Theme Data 245

Table D.7 Number and percentage of 82 easements that included at least one technology and extraction- related purpose or restriction, by size of easement. 1,000- 5,001- 10,001- 20,001- Technology Purposes by Size 5,000 10,000 20,000 50,000 > 50,000 Easements in Size Class 47 8 13 7 7 Easements with at least one purpose 14 3 4 5 3 % of easements with at least one purpose 29.8% 37.5% 30.8% 71.4% 42.9% Average number of purposes 1.1 1.3 1.0 1.0 1.3 Technology Restrictions by Size Easements with at least one restriction 43 8 11 7 6 % of easements with at least one restriction 91.5% 100.0% 84.6% 100.0% 85.7% Average number of restrictions 2.1 2.1 1.7 2.0 2.5 Technology purposes (2) include: restrict development, exploitable natural resources. Technology restrictions (4) include: utilities, alternative energy generators, drilling, and mining.

Development Table D.8 Number and percentage of 82 easements that included at least one development-related purpose or restriction, by easement holder. Privately Publicly Development Purposes by Holder Held Held Jointly Held Easements by Holder 38 39 5 Easements with at least one purpose 24 27 3 % of easements with at least one purpose 63.2% 69.2% 60.0% Average number of purposes 1.1 1.0 1.7 Development Restrictions by Holder Easements with at least one restriction 38 38 5 % of easements with at least one restriction 100.0% 97.4% 100.0% Average number of restrictions 3.3 3.3 3.4 Development purposes (2) include: restrict development, open space values. Development restrictions (4) include: residential development, commercial/industrial development, roads, and buildings.

Table D.9 Number and percentage of 82 easements that included at least one development-related purpose or restriction, by age of easement.

Development Purposes by Age 1985-1989 1990-1994 1995-1999 2000-2003 Easements in Age Class 2 9 33 38 Easements with at least one purpose 2 5 22 25 % of easements with at least one purpose 100.0% 55.6% 66.7% 65.8% Average number of purposes 1.0 1.4 1.0 1.2 Development Restrictions by Age Easements with at least one restriction 2 9 33 37 % of easements with at least one restriction 100.0% 100.0% 100.0% 97.4% Average number of restrictions 4.0 2.7 3.4 3.4 Development purposes (2) include: restrict development, open space values. Development restrictions (4) include: residential development, commercial/industrial development, roads, and buildings.

Appendix D – Matrix Theme Data 246

Table D.10 Number and percentage of 82 easements that included at least one development-related purpose or restriction, by size of easement. 1,000- 5,001- 10,001- 20,001- Development Purposes by Size 5,000 10,000 20,000 50,000 > 50,000 Easements in Size Class 47 8 13 7 7 Easements with at least one purpose 27 7 10 6 4 % of easements with at least one purpose 57.4% 87.5% 76.9% 85.7% 57.1% Average number of purposes 1.1 1.3 1.0 1.0 1.3 Development Restrictions by Size Easements with at least one restriction 46 8 13 7 7 % of easements with at least one restriction 97.9% 100.0% 100.0% 100.0% 100.0% Average number of restrictions 3.4 3.1 3.1 3.7 3.3 Development purposes (2) include: restrict development, open space values. Development restrictions (4) include: residential development, commercial/industrial development, roads, and buildings.

Forest Management Table D.11 Number and percentage of 82 easements that included at least one forest management-related purpose or restriction, by easement holder. Privately Publicly Forest Management Purposes by Holder Held Held Jointly Held Easements in Size Class 38 39 5 Easements with at least one purpose 32 31 5 % of easements with at least one purpose 84.2% 79.5% 100.0% Average number of purposes 1.6 1.5 2.0 Forest Management Restrictions by Holder Easements with at least one restriction 33 31 5 % of easements with at least one restriction 86.8% 79.5% 100.0% Average number of restrictions 2.1 1.9 2.4 Forest management purposes (2) include: silvicultural resources, ecological condition. Forest management restrictions and prescriptions (4) include: Best Management Practices, Forest Management Plan, Special Management Areas, stand diversity.

Table D.12 Number and percentage of 82 easements that included at least one forest management-related purpose or restriction, by age of easement.

Forest Management Purposes by Age 1985-1989 1990-1994 1995-1999 2000-2003 Easements in Age Class 2 9 33 38 Easements with at least one purpose 1 8 30 29 % of easements with at least one purpose 50.0% 88.9% 90.9% 76.3% Average number of purposes 1.0 1.6 1.6 1.6 Forest Management Restrictions by Age Easements with at least one restriction 1 5 28 35 % of easements with at least one restriction 50.0% 55.6% 84.8% 92.1% Average number of restrictions 1.0 1.4 2.0 2.1 Forest management purposes (2) include: silvicultural resources, ecological condition. Forest management restrictions and prescriptions (4) include: Best Management Practices, Forest Management Plan, Special Management Areas, stand diversity.

Appendix D – Matrix Theme Data 247

Table D.13 Number and percentage of 82 easements that included at least one forest management-related purpose or restriction, by size of easement. 1,000- 5,001- 10,001- 20,001- Forest Management Purposes by Size 5,000 10,000 20,000 50,000 > 50,000 Easements in Size Class 47 8 13 7 7 Easements with at least one purpose 37 7 12 5 7 % of easements with at least one purpose 78.7% 87.5% 92.3% 71.4% 100.0% Average number of purposes 1.5 1.4 1.6 1.8 1.9 Forest Management Restrictions by Size Easements with at least one restriction 39 7 10 7 6 % of easements with at least one restriction 83.0% 87.5% 76.9% 100.0% 85.7% Average number of restrictions 2.0 2.4 1.6 2.1 2.2 Forest management purposes (2) include: silvicultural resources, ecological condition. Forest management restrictions and prescriptions (4) include: Best Management Practices, Forest Management Plan, Special Management Areas, stand diversity.

Ecosystem and rare species Table D.14 Number and percentage of 82 easements that included at least one ecosystem and rare species- related purpose or restriction, by easement holder. Ecosystem / Rare Species Purposes by Privately Publicly Holder Held Held Jointly Held Easements by Holder 38 39 5 Easements with at least one purpose 32 27 5 % of easements with at least one purpose 84.2% 69.2% 100.0% Average number of purposes 1.6 1.5 1.8 Ecosystem / Rare Species Restrictions by Holder Easements with at least one restriction 29 21 4 % of easements with at least one restriction 76.3% 53.8% 80.0% Average number of restrictions 2.1 1.7 2.8 Ecosystem / Rare Species purposes (2) include: biodiversity/natural diversity, habitat for terrestrial and aquatic wildlife. Ecosystem / Rare Species restrictions (4) include: sustainable forestry practices, forest diversity, maintain wildlife habitat, stand diversity.

Table D.15 Number and percentage of 82 easements that included at least one ecosystem and rare species- related purpose or restriction, by age of easement.

Ecosystem / Rare Species Purposes by Age 1985-1989 1990-1994 1995-1999 2000-2003 Easements in Age Class 2 9 33 38 Easements with at least one purpose 0 5 27 32 % of easements with at least one purpose 0.0% 55.6% 81.8% 84.2% Average number of purposes NA 1.2 1.6 1.6 Ecosystem / Rare Species Restrictions by Age Easements with at least one restriction 0 3 18 33 % of easements with at least one restriction 0.0% 33.3% 54.5% 86.8% Average number of restrictions NA 1.3 1.9 2.1 Ecosystem / Rare Species purposes (2) include: biodiversity/natural diversity, habitat for terrestrial and aquatic wildlife. Ecosystem / Rare Species restrictions (4) include: sustainable forestry practices, forest diversity, maintain wildlife habitat, stand diversity.

Appendix D – Matrix Theme Data 248

Table D.16 Number and percentage of 82 easements that included at least one ecosystem and rare species- related purpose or restriction, by size of easement. 1,000- 5,001- 10,001- 20,001- Ecosystems/Rare Species Purposes by Size 5,000 10,000 20,000 50,000 > 50,000 Easements in Size Class 47 8 13 7 7 Easements with at least one purpose 35 7 10 5 7 % of easements with at least one purpose 74.5% 87.5% 76.9% 71.4% 100.0% Average number of purposes 1.6 1.4 1.6 1.6 1.6 Ecosystem/Rare Species Restrictions by Size Easements with at least one restriction 30 5 8 5 6 % of easements with at least one restriction 63.8% 62.5% 61.5% 71.4% 85.7% Average number of restrictions 1.9 2.6 1.4 2.2 2.8 Ecosystem / Rare Species purposes (2) include: biodiversity/natural diversity, habitat for terrestrial and aquatic wildlife. Ecosystem / Rare Species restrictions (4) include: sustainable forestry practices, forest diversity, maintain wildlife habitat, stand diversity.

Recreation Table D.17 Number and percentage of 82 easements that included at least one recreation-related purpose or restriction, by easement holder. Privately Publicly Recreation Purposes by Holder Held Held Jointly Held Easements by Holder 38 39 5 Easements with at least one purpose 22 29 5 % of easements with at least one purpose 57.9% 74.4% 100.0% Average number of purposes 1.0 1.0 1.0 Recreation Restrictions by Holder Easements with at least one restriction 26 29 4 % of easements with at least one restriction 68.4% 74.4% 80.0% Average number of restrictions 1.7 2.2 2.5 Recreation purpose (1): recreation/public access. Recreation restrictions (3) include: active recreation, vehicles, and off-road vehicles.

Table D.18 Number and percentage of 82 easements that included at least one recreation-related purpose or restriction, by age of easement.

Recreation Purposes by Age 1985-1989 1990-1994 1995-1999 2000-2003 Easements in Age Class 2 9 33 38 Easements with at least one purpose 1 8 24 23 % of easements with at least one purpose 50.0% 88.9% 72.7% 60.5% Average number of purposes 1.0 1.0 1.0 1.0 Recreation Restrictions by Age Easements with at least one restriction 2 6 24 27 % of easements with at least one restriction 100.0% 66.7% 72.7% 71.1% Average number of restrictions 3.0 2.5 2.1 1.7 Recreation purpose (1): recreation/public access. Recreation restrictions (3) include: active recreation, vehicles, and off-road vehicles.

Appendix D – Matrix Theme Data 249

Table D.19 Number and percentage of 82 easements that included at least one recreation-related purpose or restriction, by size of easement. 1,000- 5,001- 10,001- 20,001- Recreation Purposes by Size 5,000 10,000 20,000 50,000 > 50,000 Easements in Size Class 47 8 13 7 7 Easements with at least one purpose 29 5 9 6 7 % of easements with at least one purpose 61.7% 62.5% 69.2% 85.7% 100.0% Average number of purposes 1.0 1.0 1.0 1.0 1.0 Recreation Restrictions by Size Easements with at least one restriction 33 7 9 6 4 % of easements with at least one restriction 70.2% 87.5% 69.2% 85.7% 57.1% Average number of restrictions 2.2 1.6 1.9 1.8 1.5 Recreation purpose (1): recreation/public access. Recreation restrictions (3) include: active recreation, vehicles, and off-road vehicles.

Appendix D – Matrix Theme Data

APPENDIX E – SURVEY DATA Table E.1 Number of easements with restriction, number of easements for which restriction was monitored, and percent of easements for which restriction was monitored.

Easements with Restriction Monitored Restriction Restriction Monitored (%) Agrichemicals 2 2 100 Agriculture (in general) 22 21 95 Aircraft landing strip 6 6 100 Animal husbandry 10 10 100 Barn 7 7 100 Barriers / Fences 20 18 90 Biking 11 9 82 Billboards 31 29 94 Biocides 4 4 100 Biodegradable material 4 3 75 Birdwatching / Wildlife observation 7 5 71 Boat ramps 3 3 100 Boathouse 3 3 100 Boating 2 1 50 Boundary markers 8 6 75 Bridge 18 17 94 Buffers of water bodies 25 25 100 BUILDINGS (in general) 29 29 100 Burning 5 5 100 Burying 11 11 100 Camping 1 1 100 Camping (in general) 24 18 75 Canoeing / kayaking 10 6 60 Checkpoints 1 1 100 Chemicals (in general) 6 4 67 Clear-cutting / liquidation of forests 13 13 100 Commercial camping accommodations 8 8 100 Commercial / Industrial development 33 33 100 Communication towers 16 16 100 Consistent with goals/objectives of easement 9 9 100 Culvert 14 14 100 Dams 11 10 91 DBH specifications 9 8 89 Development rights (density) 4 4 100 Diking 5 4 80 Ditching 10 10 100 Docks 5 3 60 Draining 6 6 100 Dredging / filling 17 15 88 Drilling (oil, natural gas) 20 20 100 Dumping (ash, trash, garbage...) 35 35 100 Ecological restoration 5 5 100

250 251

Easements with Restriction Monitored Restriction Restriction Monitored (%) Electricity towers 12 11 92 Erosion 25 22 88 Excavating 24 24 100 Exterior Lighting 9 9 100 Feed Lots 10 8 80 Fertilizers 12 9 75 Fires (camping, cooking, warmth, etc) 8 6 75 Firewood harvesting 12 9 75 Fishing 18 14 78 Floriculture 6 6 100 For Sale (property/commercial products) 8 8 100 Forest diversity 9 8 89 Forest inventory (stand descriptions, etc) 14 14 100 Forest management camps 3 3 100 Forest restorations 9 8 89 Fungicides 12 9 75 Garages 5 5 100 Generators 1 0 - Genetically Modified Organisms 4 4 100 Grading 11 10 91 Grading/Change in topography 3 3 100 Grazing 17 17 100 Group camp conference or activity structures 4 4 100 Growing, stocking, cutting and sale of any trees 14 14 100 Harvest less then % of annual growth 3 3 100 Harvest no more than annual growth 1 1 100 Herbicides 19 17 89 Hiking / Snowshoeing 19 16 84 Horses 18 14 78 Horticulture 6 6 100 Hunting / Trapping 8 6 75 Hunting / trespassing indicators 17 16 94 Impervious surfaces 6 6 100 Impoundments 9 9 100 Injection 5 5 100 Insecticides 14 13 93 Introduction of non-native animals 10 10 100 Introduction of non-native vegetation 12 12 100 Landing yards size and required grading schedule 12 12 100 Lean-tos 5 4 80 Logging camps 2 2 100 Long term objectives and management goals 4 4 100 Machine sheds 1 1 100 Maintain diversity of stand age 5 5 100 Maintain downed material 6 6 100 Maintain quality watercourses 20 20 100 Maintain wildlife habitat 17 16 94 Manipulation/alteration of water bodies 23 21 91

Appendix E – Survey Data 252

Easements with Restriction Monitored Restriction Restriction Monitored (%) Map of harvested areas and protected natural areas 8 8 100 Maple sugar house 10 10 100 Mining (in general) 33 33 100 Native plant & animal management practices 12 12 100 New road construction 29 29 100 No plantation forestry 1 1 100 Non-Timber Vegetation removal 14 11 79 ORVs 16 16 100 Out Buildings 2 2 100 Outhouses 7 5 71 Parking lots 11 11 100 Pesticides 20 17 85 Pollution of water bodies 16 13 81 Prescribed burn program 8 8 100 Property indicators 6 4 67 Protection of Biodiversity 10 9 90 Public access 14 12 86 Public water works 3 3 100 Quarrying 15 15 100 Recreational camping 9 8 89 Removal of topsoil, sand, gravel… 30 30 100 Research-related camping 1 1 100 Residential development / structures 31 31 100 Review restrictions after designated time period 4 3 75 Right-of-ways 6 5 83 Road signs 2 1 50 Roads (in general) 25 25 100 Roads and skid trail restrictions 22 22 100 Roadway maintenance / upgrade 26 25 96 Rodenticides 12 11 92 Sale of Products (pick-your-own) 4 4 100 Salvage Timber Rights 11 10 91 Satellite dishes & Antennae 6 5 83 Sawmills 7 7 100 Septic System 8 7 88 Sewer systems (septic facilities) 13 11 85 Sheds 9 9 100 Signs (in general) 27 25 93 Snowmobiles 17 14 82 Solar facilities 2 2 100 Sound/generally accepted practices 12 12 100 Special high-elevation 3 3 100 Steep Slopes management 15 15 100 Stocking of fish and game species 1 1 100 Storage facilities 6 6 100 Storage tanks 16 15 94 Strategies to protect natural resources 3 3 100 Sufficient forest regeneration 8 7 88

Appendix E – Survey Data 253

Easements with Restriction Monitored Restriction Restriction Monitored (%) Sustainable Forestry Practices 12 12 100 Swimming pool 5 5 100 Tanks 1 1 100 Temporary Dwellings 8 7 88 Temporary Forestry Structures 4 3 75 Tennis court 6 6 100 Timber harvest goals and standards 14 14 100 Traditional non-motorized recreation 14 10 71 Trailers 9 9 100 Trails 20 16 80 Utilities (in general) 15 14 93 Utility lines 20 19 95 Vehicles 19 17 89 Vertical structure 2 2 100 Water delivery systems 5 4 80 Water rights 7 7 100 Water storage & wells 11 10 91 Wildlife / Habitat disturbance 8 8 100 Windmills 6 6 100 Wireless Service Facility 2 2 100

Table E.2 Restrictions left out of secondary baseline analysis.

Biking Birdwatching/wildlife observation Boating Consistent with goals and objectives Development rights (density) Fires (camping, cooking, warmth) Fishing Hiking/snowshoeing Horses Long-term objectives and management goals Review restrictions after designated time period Right-of-ways Sale of products (pick-your-own) Salvage timber rights Snowmobiles Timber harvest goals and standards Traditional non-motorized recreation Water rights

Appendix E – Survey Data 254

Table E.3 Average monitoring effectiveness for restriction (number of easements for which effectiveness rating was collected). Ground and Volunteers Meeting Satellite Walk Aerial / Ground Ground / with Meeting Satellite / Imagery / Property / Aerial and Ground / (Walk / Aerial / Landowner with Aerial / Ground / Ground Restriction/Purpose Ground Map Drive) Meeting Landowner Ground Meeting (staff) OVERALL

Agrichemicals 1.0 (1) 1.0 (1) Agriculture (in general) 4.0 (3) 3.3 (8) 4.3 (3) 4.8 (4) 5.0 (1) 5.0 (1) 4.0 (1) 4.0 (21) Aircraft landing strip 4.3 (4) 5.0 (1) 5.0 (1) 4.5 (6) Animal husbandry 4.0 (2) 3.2 (5) 4.0 (2) 5.0 (1) 3.7 (10) Barn 4.0 (2) 5.0 (1) 4.3 (3) 2.0 (1) 4.0 (7) Barriers / Fences 4.0 (1) 3.0 (1) 3.8 (10)3.7 (3) 4.0 (3) 3.8 (18) Biking 3.0 (2) 1.8 (4) 5.0 (1) 2.6 (7) Billboards 4.5 (6) 5.0 (1) 4.2 (10) 4.2 (6) 4.8 (4) 4.0 (1) 5.0 (1) 4.4 (29) Biocides 3.0 (1) 3.0 (1) 3.0 (2) Biodegradable material 4.0 (1) 4.0 (2) 4.0 (3) Birdwatching / Wildlife observation 1.0 (1) 4.0 (2) 5.0 (1) 3.5 (4) Boat ramps 5.0 (1) 4.0 (1) 4.0 (1) 4.3 (3) Boathouse 5.0 (2) 5.0 (1) 5.0 (3) Boundary markers 2.2 (5) 4.0 (1) 2.5 (6) Bridge 4.0 (3) 4.0 (1) 3.7 (7) 4.3 (4) 5.0 (1) 4.0 (1) 4.0 (17) Buffers of water bodies 4.2 (5) 2.7 (9) 3.8 (5) 4.0 (4) 4.0 (1) 5.0 (1) 3.6 (25) BUILDINGS (in general) 4.8 (5) 5.0 (1) 4.1 (10) 4.8 (6) 5.0 (3) 5.0 (1) 5.0 (1) 4.0 (1) 4.6 (28) Burning 3.5 (2) 3.0 (3) 3.2 (5) Burying 3.6 (8) 3.3 (3) 3.5 (11) Camping 2.0 (1) 2.0 (1) Camping (in general) 4.0 (3) 2.2 (6) 4.0 (4) 4.0 (1) 3.2 (14) Canoeing / kayaking 1.2 (5) 4.0 (1) 1.7 (6) Checkpoints 2.0 (1) 2.0 (1) Chemicals (in general) 4.0 (1) 1.3 (3) 2.0 (4) Clear-cutting / liquidation of forests 5.0 (2) 3.4 (5) 4.8 (4) 5.0 (1) 5.0 (1) 4.3 (13) Commercial camping accommodations 5.0 (1) 4.2 (5) 4.5 (2) 4.4 (8) Commercial / Industrial development 4.7 (3) 4.1 (14) 4.8 (6) 5.0 (4) 5.0 (1) 5.0 (1) 5.0 (1) 4.5 (30) Communication towers 4.0 (6) 4.3 (4) 4.7 (3) 5.0 (1) 4.0 (1) 4.3 (15) Consistent with goals/objectives of easement 5.0 (1) 5.0 (1) 4.0 (2) 3.7 (3) 4.0 (1) 5.0 (1) 4.2 (9)

Appendix E – Survey Data 255

Ground Volunteers and Satellite Walk Aerial / Ground Ground / Meeting Meeting Satellite / Imagery / Property / Aerial and Ground / (Walk / Aerial / with with Aerial / Ground / Ground Restriction/Purpose Ground Map Drive) Meeting Landowner Landowner Ground Meeting (staff) OVERALL Culvert 3.0 (4) 3.0 (1) 3.8 (4) 3.8 (4) 5.0 (1) 3.6 (14) Dams 5.0 (1) 3.5 (4) 4.0 (3) 4.0 (1) 5.0 (1) 4.0 (10) DBH specifications 4.0 (1) 2.5 (2) 3.7 (3) 5.0 (1) 3.0 (1) 3.5 (8) Development rights (density) 4.0 (2) 5.0 (1) 4.3 (3) Diking 2.0 (1) 3.5 (2) 3.0 (1) 3.0 (4) Ditching 2.0 (2) 3.0 (1) 3.5 (2) 3.7 (3) 4.0 (2) 3.3 (10) Docks 4.0 (1) 5.0 (2) 4.7 (3) Draining 4.0 (1) 3.3 (4) 4.0 (1) 3.5 (6) Dredging / filling 3.8 (4) 3.0 (1) 2.4 (5) 4.5 (2) 4.5 (2) 3.4 (14) Drilling (oil, natural gas) 3.5 (4) 5.0 (1) 3.7 (7) 5.0 (2) 4.3 (4) 5.0 (1) 5.0 (1) 4.1 (20) Dumping (ash, trash, garbage...) 3.9 (7) 4.0 (1) 3.0 (13) 3.1 (7) 4.5 (4) 3.0 (1) 1.0 (1) 3.0 (1) 3.3 (35) Ecological restoration 4.0 (2) 4.0 (1) 5.0 (2) 4.4 (5) Electricity towers 3.3 (4) 4.3 (4) 4.5 (2) 5.0 (1) 4.0 (11) Erosion 3.8 (6) 3.0 (1) 2.4 (7) 3.5 (2) 4.7 (3) 5.0 (1) 4.0 (1) 3.5 (21) Excavating 3.4 (5) 5.0 (1) 3.5 (6) 4.3 (6) 4.3 (3) 5.0 (1) 5.0 (1) 4.0 (23) Exterior Lighting 3.6 (8) 5.0 (1) 3.8 (9) Feed Lots 4.0 (1) 3.8 (5) 4.0 (1) 4.0 (1) 3.9 (8) Fertilizers 2.0 (1) 2.4 (5) 3.0 (1) 2.4 (7) Fires (camping, cooking, warmth, etc) 1.5 (6) 1.5 (6) Firewood harvesting 1.0 (1) 1.8 (5) 4.0 (1) 4.5 (2) 2.6 (9) Fishing 1.6 (7) 3.5 (2) 5.0 (1) 2.3 (10) Floriculture 4.0 (1) 4.0 (3) 4.0 (2) 4.0 (6) For Sale (property/commercial products) 3.0 (1) 4.5 (2) 4.8 (4) 4.0 (1) 4.4 (8) Forest diversity 3.0 (1) 4.0 (1) 2.5 (2) 3.5 (2) 5.0 (1) 5.0 (1) 3.6 (8) Forest inventory (stand descriptions, etc) 4.3 (3) 3.3 (4) 3.8 (4) 4.0 (1) 4.0 (1) 5.0 (1) 3.9 (14) Forest management camps 5.0 (1) 2.0 (2) 3.0 (3) Forest restorations 4.0 (1) 2.7 (3) 4.0 (1) 5.0 (1) 3.0 (1) 5.0 (1) 3.6 (8) Fungicides 1.9 (7) 3.0 (1) 2.0 (8) Garages 4.3 (3) 3.0 (1) 5.0 (1) 4.2 (5) Genetically Modified Organisms 1.0 (1) 2.0 (2) 1.0 (1) 1.5 (4) Grading 5.0 (1) 3.0 (5) 4.0 (3) 5.0 (1) 3.7 (10) Grading/Change in topography 4.0 (3) 4.0 (3)

Appendix E – Survey Data 256

Ground Volunteers and Satellite Walk Aerial / Ground Ground / Meeting Meeting Satellite / Imagery / Property / Aerial and Ground / (Walk / Aerial / with with Aerial / Ground / Ground Restriction/Purpose Ground Map Drive) Meeting Landowner Landowner Ground Meeting (staff) OVERALL Grazing 4.3 (3) 3.2 (5) 4.0 (3) 4.5 (4) 5.0 (1) 4.0 (1) 4.0 (17) Group camp conference or activity structures 3.0 (2) 4.0 (1) 5.0 (1) 3.8 (4) Growing, stocking, cutting and sale of any trees 5.0 (4) 5.0 (1) 2.7 (3) 4.0 (4) 5.0 (1) 4.0 (1) 4.1 (14) Harvest less then % of annual growth 3.0 (1) 4.0 (2) 3.7 (3) Harvest no more than annual growth 1.0 (1) 1.0 (1) Herbicides 1.7 (11)4.0 (1) 3.0 (1) 5.0 (1) 2.2 (14) Hiking / Snowshoeing 1.0 (1) 2.0 (7) 3.3 (3) 5.0 (1) 2.5 (12) Horses 2.0 (2) 1.7 (7) 2.7 (3) 5.0 (1) 2.2 (13) Horticulture 4.0 (1) 4.0 (3) 4.0 (2) 4.0 (6) Hunting / Trapping 2.0 (1) 3.5 (2) 3.0 (3) Hunting / trespassing indicators 3.5 (2) 2.0 (1) 1.9 (8) 5.0 (4) 2.9 (15) Impervious surfaces 4.0 (1) 4.0 (1) 5.0 (3) 5.0 (1) 4.7 (6) Impoundments 5.0 (1) 5.0 (1) 3.7 (3) 4.0 (1) 4.0 (2) 5.0 (1) 4.2 (9) Injection 3.5 (2) 3.0 (3) 3.2 (5) Insecticides 1.9 (9) 3.0 (1) 2.0 (10) Introduction of non-native animals 2.0 (2) 5.0 (1) 1.8 (4) 1.0 (1) 3.5 (2) 2.4 (10) Introduction of non-native vegetation 4.0 (2) 3.0 (1) 2.6 (5) 4.0 (1) 4.7 (3) 3.5 (12) Landing yards size and required grading schedule 4.3 (3) 3.5 (4) 4.0 (3) 4.5 (2) 4.0 (12) Lean-tos 3.0 (1) 3.0 (2) 4.0 (1) 3.3 (4) Logging camps 5.0 (1) 4.0 (1) 4.5 (2) Long term objectives and management goals 1.0 (1) 4.0 (1) 4.0 (1) 5.0 (1) 3.5 (4) Machine sheds 3.0 (1) 3.0 (1) Maintain diversity of stand age 2.0 (1) 1.0 (1) 3.0 (3) 2.4 (5) Maintain downed material 2.0 (1) 2.7 (3) 3.5 (2) 2.8 (6) Maintain quality watercourses 3.0 (3) 2.6 (7) 3.8 (4) 4.0 (2) 5.0 (1) 5.0 (1) 4.0 (1) 5.0 (1) 3.4 (20) Maintain wildlife habitat 3.3 (3) 4.0 (1) 2.0 (2) 3.2 (6) 4.0 (3) 4.0 (1) 3.3 (16) Manipulation/alteration of water bodies 3.8 (5) 2.7 (7) 4.0 (6) 4.0 (3) 3.5 (21) Map of harvested areas & protected natural areas 4.0 (2) 3.7 (3) 4.0 (1) 5.0 (1) 5.0 (1) 4.1 (8) Maple sugar house 5.0 (1) 5.0 (3) 4.3 (4) 5.0 (1) 5.0 (1) 4.7 (10) Mining (in general) 5.0 (5) 5.0 (1) 3.6 (13) 4.8 (8) 4.8 (4) 5.0 (1) 5.0 (1) 4.4 (33) Native plant & animal management practices 4.0 (2) 3.3 (4) 4.0 (3) 4.0 (2) 3.7 (11) New road construction 4.5 (4) 5.0 (1) 3.6 (12) 4.3 (6) 4.0 (3) 5.0 (1) 5.0 (1) 4.0 (1) 4.1 (29)

Appendix E – Survey Data 257

Ground Volunteers and Satellite Walk Aerial / Ground Ground / Meeting Meeting Satellite / Imagery / Property / Aerial and Ground / (Walk / Aerial / with with Aerial / Ground / Ground Restriction/Purpose Ground Map Drive) Meeting Landowner Landowner Ground Meeting (staff) OVERALL No plantation forestry 4.0 (1) 4.0 (1) Non-Timber Vegetation removal 2.0 (3) 2.0 (3) 4.0 (1) 4.0 (2) 2.0 (1) 4.0 (1) 2.7 (11) ORVs 3.0 (4) 2.1 (7) 3.5 (2) 5.0 (2) 2.9 (15) Out Buildings 3.0 (1) 5.0 (1) 4.0 (2) Outhouses 3.0 (2) 4.0 (1) 5.0 (1) 3.8 (4) Parking lots 5.0 (2) 4.1 (7) 4.0 (2) 4.3 (11) Pesticides 4.0 (1) 1.8 (11)4.0 (1) 3.0 (1) 2.2 (14) Pollution of water bodies 1.0 (3) 3.1 (8) 2.0 (1) 5.0 (1) 2.7 (13) Prescribed burn program 3.6 (5) 5.0 (1) 5.0 (2) 4.1 (8) Property indicators 5.0 (1) 4.0 (2) 4.0 (1) 4.3 (4) Protection of Biodiversity 4.0 (1) 2.7 (3) 4.0 (3) 4.0 (1) 5.0 (1) 3.7 (9) Public access 1.6 (7) 2.5 (2) 4.5 (2) 2.3 (11) Public water works 4.5 (2) 4.0 (1) 4.3 (3) Quarrying 5.0 (1) 4.0 (7) 4.7 (6) 5.0 (1) 4.4 (15) Recreational camping 4.0 (1) 5.0 (1) 1.5 (2) 3.5 (2) 3.2 (6) Removal of topsoil, sand, gravel… 4.7 (6) 3.5 (11) 4.8 (8) 4.3 (3) 5.0 (1) 5.0 (1) 4.3 (30) Research-related camping 2.0 (1) 2.0 (1) Residential development / structures 4.7 (3) 4.3 (14) 5.0 (5) 4.3 (3) 5.0 (1) 5.0 (1) 4.0 (1) 5.0 (1) 4.5 (29) Review restrictions after designated time period 4.0 (1) 4.0 (1) 4.0 (2) Right-of-ways 4.0 (1) 5.0 (2) 4.5 (2) 4.6 (5) Road signs 4.0 (1) 4.0 (1) Roads (in general) 4.0 (5) 4.4 (7) 4.2 (6) 4.8 (4) 5.0 (1) 5.0 (1) 3.0 (1) 4.3 (25) Roads and skid trail restrictions 4.0 (6) 4.0 (1) 3.0 (7) 4.0 (3) 5.0 (2) 4.0 (1) 5.0 (1) 3.8 (21) Roadway maintenance / upgrade 3.7 (3) 4.0 (1) 3.9 (11) 4.2 (6) 5.0 (3) 5.0 (1) 4.1 (25) Rodenticides 1.9 (9) 3.0 (1) 2.0 (10) Sale of Products (pick-your-own) 4.0 (1) 4.5 (2) 4.0 (1) 4.3 (4) Salvage Timber Rights 4.0 (1) 2.6 (5) 2.5 (2) 5.0 (1) 5.0 (1) 3.2 (10) Satellite dishes & Antennae 3.0 (1) 4.0 (1) 5.0 (2) 5.0 (1) 4.4 (5) Sawmills 5.0 (1) 4.5 (4) 5.0 (1) 5.0 (1) 4.7 (7) Septic System 4.7 (3) 4.3 (4) 4.4 (7) Sewer systems (septic facilities) 3.9 (8) 2.0 (1) 5.0 (1) 5.0 (1) 3.9 (11) Sheds 5.0 (1) 3.7 (3) 4.0 (1) 5.0 (1) 5.0 (1) 2.0 (1) 5.0 (1) 4.1 (9)

Appendix E – Survey Data 258

Ground Volunteers and Satellite Walk Aerial / Ground Ground / Meeting Meeting Satellite / Imagery / Property / Aerial and Ground / (Walk / Aerial / with with Aerial / Ground / Ground Restriction/Purpose Ground Map Drive) Meeting Landowner Landowner Ground Meeting (staff) OVERALL Snowmobiles 5.0 (2) 1.1 (7) 4.0 (3) 5.0 (1) 2.7 (13) Solar facilities 4.0 (1) 5.0 (1) 4.5 (2) Sound/generally accepted practices 5.0 (1) 3.0 (5) 4.0 (5) 3.0 (1) 3.6 (12) Special high-elevation 3.0 (1) 4.0 (2) 3.7 (3) Steep Slopes management 3.6 (5) 2.4 (7) 3.0 (2) 4.0 (1) 3.0 (15) Stocking of fish and game species 4.0 (1) 4.0 (1) Storage facilities 5.0 (1) 3.0 (1) 4.5 (2) 2.0 (1) 5.0 (1) 4.0 (6) Storage tanks 4.0 (4) 4.0 (1) 3.2 (6) 4.0 (1) 5.0 (2) 4.0 (1) 3.8 (15) Strategies to protect natural resources 4.0 (1) 4.0 (1) 5.0 (1) 4.3 (3) Sufficient forest regeneration 2.8 (4) 4.0 (1) 5.0 (1) 3.0 (1) 3.3 (7) Sustainable Forestry Practices 3.0 (1) 3.0 (4) 3.7 (3) 3.0 (1) 5.0 (1) 5.0 (1) 3.5 (11) Swimming pool 3.0 (1) 4.7 (3) 3.0 (1) 4.0 (5) Tanks 5.0 (1) 5.0 (1) Temporary Dwellings 3.0 (3) 5.0 (1) 4.5 (2) 5.0 (1) 4.0 (7) Temporary Forestry Structures 4.0 (1) 5.0 (1) 4.0 (1) 4.3 (3) Tennis court 4.0 (2) 4.7 (3) 3.0 (1) 4.2 (6) Timber harvest goals and standards 4.5 (2) 3.3 (6) 3.3 (3) 5.0 (2) 5.0 (1) 3.9 (14) Traditional non-motorized recreation 1.4 (5) 3.5 (2) 4.0 (1) 2.3 (8) Trailers 4.0 (3) 4.0 (2) 4.3 (3) 4.1 (8) Trails 3.0 (1) 4.0 (1) 3.3 (6) 4.3 (4) 4.0 (3) 3.7 (15) Utilities (in general) 4.0 (1) 4.1 (7) 4.7 (3) 5.0 (1) 3.0 (1) 4.2 (13) Utility lines 4.5 (4) 3.9 (9) 4.5 (4) 4.0 (2) 4.2 (19) Vehicles 3.0 (3) 2.1 (11) 4.5 (2) 2.6 (16) Vertical structure 3.0 (1) 3.0 (1) 3.0 (2) Water delivery systems 4.0 (1) 4.0 (1) 4.0 (2) 4.0 (4) Water rights 2.0 (4) 1.0 (1) 4.5 (2) 2.6 (7) Water storage & wells 3.5 (2) 3.8 (5) 4.0 (2) 4.0 (1) 3.8 (10) Wildlife / Habitat disturbance 4.0 (1) 2.5 (4) 3.0 (2) 5.0 (1) 3.1 (8) Windmills 3.3 (3) 4.0 (1) 5.0 (1) 4.0 (1) 3.8 (6) Wireless Service Facility 4.0 (2) 4.0 (2)

Appendix E – Survey Data

APPENDIX F – SURVEY QUOTES FROM MONITORING PROFESSIONALS

These quotes were selected from the 23 phone surveys conducted with monitoring professionals. Personal and organization information has been removed to provide anonymity.

The quotes are grouped by the following headings, “relationship with landowner,” “monitoring effectiveness,” “extent of monitoring,” “frequency of monitoring,” “size of property,” “easement purposes”, “language of easement,” “specific restrictions,” “specific monitoring techniques,” “financial aspects,” “miscellaneous.”

Relationship with Landowner

“It does seem weird in a way to think of communication as monitoring…a better word would be stewardship...because it is preventative and [it keeps] everyone feeling positive about the easement and knowing what is going on….[communication with landowner] is preventative and it really helps.”

“It really depends on the property…I have a landowner on this property who I trust completely…they want the scrutiny. A relatively ineffective method may well work great with these guys. But if you've got someone who wants to bend the rules, then I'd probably want to beef up the monitoring procedures.”

“Well you never know once the land changes hands, I mean the grantor themselves - it’s no big deal because we've worked into the easement what they want. So they are not the problem. It’s when you start with second and third landowners down the road, that’s when you start to run into problems." "You won't always run into problems but you're likely to.”

“In my estimation it all boils down to the landowner and their intent. If you have a great landowner then you have nothing to worry about…one who calls and who has the same goals as you have, then you're in great shape. We do not look at those quite as closely, because of our comfort with the landowner. But if that changes, then everything changes...you can have a great landowner who does everything you want, and you can have a landowner who can pick any of these easements - I don't care how tightly they are written - they can pick them apart, and do a lot of bad things, and because they are written to provide some flexibility, that inherently provides some gray zones, so if someone really wants to stick it to you they can...So relationships and a landowner's goals and intent are really important.”

“You build up a trust [with the landowner] over the course of developing an easement, that’s one good thing about going through the process. If you can’t build up trust over the course of developing an easement language – you will not have a signed agreement in the end…The unspoken major component of easements is: this is a partnership and it may

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be on legal paper but it is in the spirit of partnership and if you don’t want to be in a partnership you shouldn’t be trying to sell an easement to us.”

“The most important thing is that you trust the landowner - so we don't try to buy [easements] unless we trust [the landowner].”

“[Conservation easements are] a really good deal for them and us: we wind up paying about half the value of the land to give it a certain level of protection. We're really getting pretty close to 100%, without having to pay for 100%, but if anything starts going wrong, then it is 'Oh, god, what do we do?'...and our attorney is saying 'if they violate in the slightest way, you need to slam 'em ...We're really reluctant to do that, we'd much rather work with these people...If we really start jumping on these people we're not going to get conservation easements, which we think are more important than being exactly right.”

“[You] can't look at this as an adversarial relationship, if you are going to hold an easement and you don't trust the landowner, you probably shouldn't get the easement in the first place...If it is always 'I don't trust him and I think he's going to do this, this and this' to me, it would not seem prudent to hold that easement, especially on [large properties].”

“Having good relations with a landowner is critical to knowing whether you are going to have a problem with something...having them come to you first and ask you the question first is more desirable.”

Monitoring Effectiveness

"Our monitoring is weak."

"Unless we stumble across it or are told by somebody what is going on we won't find it."

"You can tell that I wish I had a better method and could be more effective in monitoring."

“I guess the easiest thing to monitor, in general…are forest management activities, because they are visible. Building a house is visible; recreation is not visible for the most part. And water quality activities are not necessarily visible but the results are visible.”

Extent of Monitoring

“…quite frankly, our monitoring, in my opinion, is a little thin.”

“It is really tough to get out there and invest as much time as we'd like for each easement…particularly the big ones.”

Appendix F – Survey Quotes from Monitoring Professionals 261

“Basically monitoring is a once a year inspection form that I fill out. That is the extent of monitoring.”

“Another challenge in monitoring is multiple parties involved, like a family with many people. If they want to take action it’s difficult to talk to everyone.”

“Monitoring for water quality as a goal is taken care of to some degree by city-water source, and federal agencies.”

“There was some stuff in there that was put there more for psychological and political benefit than for enforceability...trying to enforce that provision would be very difficult.”

“It [the baseline documentation] just sits on the shelf”

“We use other eyes and ears; it is not just myself and my assistant... every other DNR forester who is out and about...will let us know if they come across something that doesn't look proper.”

“I would get notification if that [violation] was happening.”

Frequency of Monitoring

“As far as me being able to spend as much time out there as I would like… I can't…and that goes for all our easements. It is very difficult to get folks out there to make sure that things are exactly the way we'd like.”

Size of Property

“For us, one improvement we need to make is increasing our level of technology in monitoring especially on big easements. We’re looking at easements in excess of 10,000 acres… monitoring I think really needs to take a step up in order to be effective. That’s when satellite imagery really comes into play and frequent aerial monitoring. On 4,000 acres doing a couple of days walking and driving the property you’re…not seeing a lot of what’s going on.”

“I think [satellite imagery] is great for large tracts of land in excess of 1500 acres, but for smaller stuff it is pretty coarse.”

Easement Purposes

“See the goals of the easement, they’re really unenforceable. The restrictions are guiding the activity so you can meet the goal. You can monitor actions that will impact the habitat, but monitoring the goal for good habitat is pretty ineffective I think. Indirectly we monitor these.”

Appendix F – Survey Quotes from Monitoring Professionals 262

“What we can really hang our hat on if there is a problem is the deed language itself...the goals are very nice to have there, but it is a little bit fluffy, and broader; if there is going to be a problem, you have to go to the deed language itself.”

“We kind of have a decent handle on monitoring but it’s not great. [We] don’t necessarily monitor for large goals of the easement. We do this indirectly…in terms of monitoring it is highly effective but in terms of achieving a goal it is less effective because there aren’t any restrictions that require consideration of say, terrestrial wildlife.”

“We currently do not have in our monitoring any…water quality sampling… I guess you could say that is a weakness. If you don’t have a baseline for water quality you would have a hard time enforcing a later infraction that you thought was a pollution problem for example.”

“We're not specifically looking for habitat for plants” “The only thing I would be looking for is just to make sure that they are still there, and that [the landowner] hasn't just gone in and completely cleared an area or managed against them...the purpose of the easement is to protect these natural resources, so if they are not protecting them, then we have a problem. They don't necessarily have to manage to enhance them, but they can't do anything to just wipe them out.”

Language of Easement

“[The] easement is extremely general and wide open to interpretation, newer documents might be 'tighter'.”

“That was kind of the evolution of these easements: [we used to think that] as long as you keep it forest land you know that is a great thing and we’re way ahead of the game and the rest will take care of itself, and now we’re getting to the point where we are saying well, maybe there are other ways to do this. That’s the direction we are going – where we need to have specific requirements.”

“There was some stuff in there that was put there more for psychological and political benefit than for enforceability...Trying to enforce that provision would be very difficult.”

Specific Restrictions

“I'm going to say with all the checks and balances we have and the state and federal system it would be easy to know [about illegal chemical use] but not just by walking on the property. It would be easy to know if this happened from other sources.”

“If you’re looking at these easements and how effective they are, we've got a real problem here in [this state] because of the split estate issue. You can have an easement and it can say no roads, no nothing like that but if an oil company has the mineral rights

Appendix F – Survey Quotes from Monitoring Professionals 263

and they want to extract the minerals they can run a road right across that area. And there is nothing we can do about it.”

“IRS restricts removal of minerals on easement property: you may find this restriction in many easements as a result.”

“[It is] almost impossible to really effectively monitor [fishing, hiking, and hunting]” “I can monitor and see if there are signs [of] ORVs but actually enforcing and making that stick, there is a difference. So ORVS I give a two [for effectiveness].”

“I think the effectiveness of monitoring any hunting / fishing / trapping / activity is relatively ineffective, because of the nature of the activity, and the inability of the landowner to be there when it takes place, observe it, and therefore have evidence that it occurred...It falls into the category of ephemeral uses...We assiduously avoid restrictions like that in any of our standard easements.”

“[Chemicals are] almost impossible to monitor, except for herbicides, which kill vegetation, so that shows up.”

“[Wildlife / habitat disturbance is a] very subjective issue...you can't really monitor that effectively without collecting long term baseline data and then monitoring actual habitat use of over time.”

“The ability to monitor for [forest liquidation] is very, very hard...Any two people can go out and look at a timber harvest, and one may think it is a liquidation harvest and the other may not, it is not something that a lay person can do - it has to be done by a forester, and it has to be done through data collection and a quantitative analysis” “If we had that language in this easement that speaks specifically to a liquidation harvest, I suspect that we have not repeated it [in other easements].”

Specific Monitoring Techniques

“I don't subscribe to the [monitoring technique of] drive around in a truck and take a picture.”

“[Satellite imagery] is an effective technology; it is just a matter of cost. With current state budgets, it is not a very feasible thing for us to look at...but one pilot project we did...proved to be very effective” “We have gone away from photo comparisons, but do aerial once every 10 years now on a very casual basis.”

Financial Aspects

What bothers me is looking at how much money we have...put into these easements but how little we do for the maintenance and monitoring…It is all well and good to spend

Appendix F – Survey Quotes from Monitoring Professionals 264

[amount of money] for [name of easement] but unless we can take care of it we’ve really not accomplished the objectives.”

“We don't have any money dedicated specifically for any monitoring or any of our activities on the property...Everything that I do on the property is just part of my salary that comes out of the big pot.”

“You must have some kind of endowment set up to monitor your easement. And I can't accept any money from a landowner right now to set up an endowment because I don't have a fund. So as a state agency I can't just put it in my desk drawer and save it for the endowment. Legacy does not allow us to use legacy funds to monitor an easement so we have to use stewardship money or raise money. I think it is a problem for everyone. Especially in the private sectors if they have a lawsuit then they have to defend themselves. So it is crucial that you set up some sort of an endowment fund and with every deal you close you put some of that money into the fund and pull from the interest to send somebody out to monitor.”

“Such a minor part of the stewardship budget is put towards monitoring the easements."

"[We] don't do aerial because I can't afford aerial for the baseline so I don't have them to go on for the monitoring."

“In terms of the penalties that are associated with [the state statute]...if [companies] violate these restrictions, which are part of law, they can be involuntarily withdrawn [from the program], they get to pay all the back taxes on the property plus interest, and that gets into millions of dollars…So there is an incentive for them to not violate the law.”

Miscellaneous

“We are working on a database to keep track of the easement to track or at least verify that the easement was visited and we checked to see how the easement compares on the ground with baseline. But we are struggling with it. I know that a lot of [other organizations] are looking at this and struggling with this.”

“[I use] a system to keep me informed about when monitoring is due. …we are using this Erler’s Land Steward which LTA is marketing. And it’s a great database program for all your monitoring information. You put all the information there. Every time you open the program it pops up when the monitoring is due.”

Appendix F – Survey Quotes from Monitoring Professionals

APPENDIX G – MONITORING COST WORKSHEET

1 MONITORING COST WORKSHEETTP PT

Requirements & Activities Rates/hr/mi Total

TRAINING Field Skills Data Documentation Technical/Equipment Negotiation

TIME/STAFF Data Collection COMMITMENT Report Writing Follow-up Travel

TRAVEL To & From the Property At the Property Type of Transportation

MAPS & PHOTOS Aerial Photos Archival Photos

ADMINISTRATION Phone Mailing Photocopying Archival Storage Associated Overhead Costs

SPECIAL MONITORING Specialists Inspectors

EQUIPMENT Vehicles Cameras $ Photo Equipment Computers Measuring Equipment

ENFORCEMENT COSTS Legal Fees

TOTAL COST= ______

3% x ______

TOTAL ENDOWMENT CONTRIBUTION REQUESTED =

1 TP PT Adapted from Ratley-Beach, 2003.

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APPENDIX H – GLOSSARY OF TERMS

Baseline Documentation: “…records the condition of the property at the time of the easement’s acquisition” (Lind 1991, 17). “…should document in detail the condition of all ecological, scenic, historic, geologic, land use and other property features that are protected or affected by the easement terms” (Lind 2001b, 20).

Best Management Practice (BMP): “A practice or combination of practices that a designated agency determines to be the most effective, practical means of reducing the amount of pollution generated by non-point sources to a level compatible with water quality goals” (Oregon Energy Glossary 2003).

”Structural, nonstructural, and managerial techniques recognized to be the most effective and practical means to reduce surface water and ground water contamination while still allowing the productive use of resources” (Mid-Atlantic Integrated Assessment Glossary 2003).

Conservation Easement: “a legal agreement between a landowner and a nonprofit land trust or governmental entity that permanently limits the uses of the land in order to protect specified conservation values” (Lind 2001b, 2).

Diameter at Breast Height (DBH): “The diameter of a tree measured 4 feet 6 inches above the ground” (Oregon Energy Glossary 2003).

Forest Legacy Program (FLP): A program of the U.S. Dept. of Agriculture’s Forest Service. “The Forest Legacy Program (FLP), a federal program in partnership with states, supports state efforts to protect environmentally sensitive forest lands...It encourages and supports acquisition of conservation easements...Most FLP conservation easements restrict development, require sustainable forestry practices, and protect other values” (Forest Legacy Program 2004).

“The Forest Legacy Program (FLP) was established in 1990, as part of the Farm Bill, to protect sensitive forest areas from conversion to non-forest uses…Administered by the Forest Service, the program is a partnership between the federal agency, state foresters, local governments, land trusts, and landowners. The goal of the program is to “mitigate forest fragmentation and loss of forested landscape” (Cooksey 2003).

Forest Management Plan (FMP): ‘a management plan prepared by forestry professionals’ (Boelhower 1995, 14).

‘a plan prepared separately from the easement, which may be co-developed with, reviewed by, and/or approved by the easement holder or its assignee, according to the easement terms. The plan must be prepared by a knowledgeable professional and periodically updated. The plan allows flexibility, within the bounds of the easement

266 267

terms, so that forest management can adapt to changing conditions over time – it is easier to change a plan than an easement’ (Lind 2001b, 18).

Monitoring Protocol: A written plan created to provide guidance and consistency to the monitoring of easements.

Riparian area: An area of land directly influenced by water. An ecosystem that is transitional between land and water ecosystems. Riparian areas usually have visible vegetative or physical characteristics reflecting the influence of water. Riversides, lake borders, and marshes are typical riparian areas (Oregon Energy Glossary 2003).

Riparian buffer: Riparian areas that are managed to protect the aquatic and riparian ecosystem. A riparian buffer protects water quality and temperature, habitat along the banks, upland habitat for aquatic and riparian species, and some or all of the floodplain. (Oregon Energy Glossary 2003).

Salvage logging: The harvest of dead, dying, damaged or weak trees after a forest fire to prevent the spread of disease or insects and to reduce the risk of high intensity fire (Oregon Energy Glossary 2003).

Sustainable: An ecosystem condition in which biodiversity, renewability, and resource productivity are maintained over time (Oregon Energy Glossary 2003).

Watershed: The drainage basin contributing water, organic matter, dissolved nutrients, and sediments to a stream or lake (Oregon Energy Glossary 2003).

Working Forest Conservation Easement: “forest lands that are actively managed for goods or services that have a monetary value in the current marketplace, such as timber, recreation, and water supply protection” (Lind 2001b, 2).

“the term ‘working forest’…evades simple definition, and [is recognized as] imperfect. All forests ‘work’ by providing multiple goods and services upon which we depend, including clean air, clean water, wildlife habitat, intangible aesthetic benefits, and many other qualities that we value.” (Lind 2001b, 2).

Use of Terminology The terms listed below are defined in the way they were used for the purposes of this study.

Aerial Photography: Includes taking photos or video of the property from a plane, using such photos or video that were taken by a third party (most commonly a state agency), or simply flying over the site to view it for monitoring purposes.

Aerial Monitoring: Viewing the property from a plane. May include the use of video or photography. (Does not include satellite)

Appendix H – Glossary of Terms 268

Annual Meeting: A meeting held once a year between the landowner (or land manager) and monitoring staff from the organization holding the easement.

Easement Comparison Study: (see “Research Design” definition)

Easement Sample Set: 82 easements from every region of the U.S., ranging in size from 1,000 acres to >50,000 acres. The process of identifying and collecting these easements is detailed in chapter 3.

Ground-level Monitoring: Visiting the easement property by foot, bicycle, or vehicle.

Matrix: A chart with both an x and y axis, containing fields with values. For this study, the y axis contained a list of approximately 250 restrictions and purposes that could appear in easements, and the x axis contained a list of the 82 easements which were analyzed. Fields were demarcated when a listed restriction or purpose was found in an easement.

Method: Used in the monitoring survey analysis, this term describes the overall group of techniques used for monitoring a site. For example, the two techniques of ‘ground-level monitoring’ and ‘aerial photography’ used together would be referred to as one method. Note: a method is sometimes only a single technique, if that technique is the only one used for monitoring.

Monitoring: “A program of regularly inspecting and documenting the condition of the property” (Lind 1991, 27).

Monitoring Sample Set: A subset of the easement sample set. 39 Easements from every region of the U.S., ranging in size from 1,000 acres to > 50,000 acres. The process of selecting these easements, as well as the age, size, and regional breakdown of the sample set, is detailed in chapter 3.

Monitoring Survey Study: (see “Research Design” definition)

Purpose: Terms found in the recitals, “whereas” clauses, or purposes section of an easement (Lind 2001b, 13).

Regions used in data analysis: 1 – Northeast (Maine, Vermont, Hew Hampshire, New York, Pennsylvania) 2 – Southeast (North Carolina, South Carolina, Alabama, Florida) 3 – Midwest (Wisconsin, Michigan) 4 – Northwest (Washington, California, Wyoming, Hawaii, Montana) 5 – Southwest (New Mexico, Utah)

Research Design: This study was composed of two distinct, but linked, research projects, described below. The projects were conducted simultaneously.

Appendix H – Glossary of Terms 269

Easement Comparison Study: This section of the research compared the language (mainly restrictions and purposes) of different easements, examining trends by region, age of easement, size of easement, and holder of easement. 82 easements were analyzed, from 18 states around the country.

Monitoring Survey Study: This section of the research used data from the easement comparison study to create customized surveys with easement-specific questions. Surveys were conducted to determine how easement restrictions and purposes were being monitored. Surveys of 23 individuals were conducted, representing 39 easements in 11 states.

Restriction: Legal language found in an easement that mandates the protection of specific resources or defines thresholds for acceptable use or management (Lind 2001b, 26). This study included in the term ‘restriction’ anything in easements sections labeled: restrictions, affirmative requirements, and prescriptions.

Satellite Imagery: Data collected from satellites and used for monitoring purposes. One use is for change detection, a technique in which the data from any given year can be compared to that of past years to detect changes in land use, canopy cover, erosion, etc.

Technique: Used in the monitoring survey analysis, this term describes a specific, single monitoring technology or practice. ‘Aerial photography’ for example. This term is differentiated from ‘method’ by its increased specificity: a technique is always single, whereas a method can be a single technique or a combination of techniques.

Violation (of easement): An action taken that is disallowed under the terms of the easement. Ex: The construction of a barn on a property protected with an easement that prohibits structures.

Appendix H – Glossary of Terms