Comment on Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements

• Date: 01 August 2017

8-2017 NEWS & ANALYSIS 47 ELR 10661

C O M M E N T

Comment on Enhancing Conservation

Options: An Argument for Statutory

Recognition of Options to Purchase

Conservation Easements

by Roger McCoy

Roger McCoy is the director of the Division of Natural Areas within the Tennessee Department

of Environment and Conservation, where he works extensively on monitoring and managing rare

species in Tennessee’s natural areas. Mr. McCoy holds a Master of Science in botany.

The Tennessee State Natural Areas Act w as signed

in 1971. Tennessee ha s 85 state natu ral areas and

56 state pa rks under its Department of Environ-

ment and Conservation. e Department has a n active

land acquisition program that is fu nded in part by a

real estate transfer tax. In addition, over the years, the

Department has reached out to and worked with private

land trusts.

e focus in the Division of Natural Areas is to pro-

tect rare communities and rare ecosystems. Profs. Federico

Cheever and Jessica Owley correctly point out that conser-

vation organizations may not “grapple with the problem

of what happens when the resources a conservation ea se-

ment”—or, in the state’s case, ownership—“was intended to

preserve are no longer present.” e experience in Tennessee,

for example, is that a key threat to rare ecosystems, in addi-

tion to climate change, is invasive species. Buying a piece

of property or having an easement is certainly not enough,

if there is an assault from invasive plants. For example, the

woolly adelgid is threatening much of the state’s forests in

the east, so even if a conservation easement was intended

to preserve a hemlock stand, that stand may now be gone.

Other forest pests include the emerald ash borer.

Aside from managing invasive species, there is a direct

correlation with climate change and problems with native

species such as red maple which has invaded prairies on

the Eastern Highland R im of Tennessee. e change in

hydrological regimes has meant that in Coee County, for

example, red maple is almost uncontrollable; whereas, sev-

eral decades ago red maple was not a concern.

Furthermore, in Tennessee, indirect results of climate

change are evident including precipitation increases and

re regime changes—which are important because some

native ecosystems even in the eastern U.S. are dependent

upon re. is means conservation ea sements or acquisi-

tions will need to be managed accordingly. e challenge

of preserving ecosystems is complicated by the fact, as the

authors note, that ecosystems are inherently dynamic, even

without increased CO2 from fossil fuel. erefore, if a land

management agency acquires a property and assumes it

can maintain the land in a wilderness state and walk away,

it could lose a lot of rare species.

It important to note t hat simply preserving larger por-

tions of important ecosystems to adapt to the impacts of

climate change may not be enough without an overarch-

ing approach for dealing with the eects of climate change.

For example, obtaining large tracts of land that include

microhabitats so when the climate does change species can

move positions (e.g., to a more shaded environment) may

not work. Even if a species is not out of its temperature

range, there may be some other factors, such as ooding or

re, that have changed the habitat or d isturbance regime

it requires.

ere are also genetic fac tors related to climate change.

As habitats shrink, what ecologists refer to as “genetic

bottlenecking” and degradation of native systems could

occur. ere are also phenological cha nges—such a s birds

migrating at a dierent time and owers opening at a dif-

ferent time. e problem is that a ower’s opening may not

be quite on par with the pollinator it needs w ith a change

in climate.

e authors make the valid ca se for the use of long-

term options, in addition to the way current conser vation

easement options are used—mainly as short-term options

while conservation groups raise funds for purchases. Use

of the legal mechanism they address is certain ly important

and would in no way hinder, and would most likely assist—

is Comment is based on a transcript of a panel discussion held on

Monday, March 13, 2017, at Vanderbilt University Law School in

Nashville, Tennessee.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.