What are the pros and cons of leasing and ownership?

As with any conservation strategy, there are pros and cons that must be considered prior to leasing or owning ocean or coastal lands and resources. And while pros and cons of conservation leasing and ownership can be generally addressed, the specific circumstances of potential lease and ownership projects must be considered as they may diminish, amplify, extinguish, or create pros and cons.

Pros

The pros of conservation leasing and ownership can be described from at least three perspectives -- those of conservation organizations, management agencies, and private landowners.

For conservation organizations, proprietary use authorizations issued by government agencies, such as leases for conservation activities, and fee-simple or less-than fee-simple deeds granted by private parties provide many advantages that other formal or informal relationships will not provide:

• Leasing and ownership can prevent the future degradation of sites by removing the potential to develop sites for commercial, residential, and industrial purposes.
• Leases and deeds put the lessee and owner in the lead for making decisions regarding land and resources.
• Leases establish a landlord-tenant relationship and, as a tenant, conservation organizations have rights (as defined by local, state, and federal law as well as the conditions of the lease) that can be defended in court.
• Leases can transfer specific management authority (describing the lease-specific rights of the lessee and lessor) over the property from the management agency to the conservation organization for the term of the lease.
• Leases can also ascribe liability and describe legal recourses for resolving disputes.
• Leases and deeds typically afford varying levels of exclusive use over the land and resources.
• Leases and deeds can assure that physical improvements existing or created on the property will remain.
• Leases and deeds can establish proprietary footholds in communities for conservation organizations, which can be used to create partnerships and goodwill for conservation projects.
• Nearly all states in the United States offer some form of leasing for state-owned submerged lands and in many cases the lease fees are relatively inexpensive.

SCUBA diver. ©Audubon of California

For management agencies, issuing leases for conservation of ocean and coastal lands and resources under their authority accomplishes several positive things:

• Shifts long-term stewardship requirements to conservation organizations.
• Uses leasing authority proactively to meet public trust responsibilities.
• Focuses attention on specific areas which otherwise may not receive it.
• Creates alternative funding sources for conservation programs.
• Develops creative partnerships and allies with conservation organizations.
• Taps into ocean and coastal expertise which may not otherwise be available.
• Assigns additional personnel and resources to public lands.

For private landowners, selling interests in intertidal and subtidal lands can serve to:

• Conserve and restore waterfronts that private landowners use and enjoy.
• Improve remaining, adjacent private land values.
• Liquidate value in the intertidal and subtidal private landholdings.
• Create tax breaks.
• Create new partnerships.

Cons

While there are many positive aspects of private conservation leasing and ownership of ocean and coastal lands and resources, there are also negative aspects. Although many of these negative aspects can be addressed, doing so can require time, money, and patience.

• Lease and ownership boundaries for lands lying under ocean and coastal waters may not be well understood or defined.
• The defensible rights obtained through a lease or deed may not be well understood or defined.
• The public trust doctrine usually applies to lands lying under ocean and coastal waters in the United States (other countries may have similar public trust-protected rights).
• In addition to regulatory restrictions and permits, local zoning, and land use designations, conservation leasing and ownership projects are not exempt from potential eminent domain condemnation (e.g., Corps of Engineers or the United States Coast Guard projects under navigational servitude, military facilities under War Powers Act, state/federal transportation projects, etc.). Local port authorities may also have similar powers.
• The process for obtaining a lease may not be clear.
• The authorities for issuing a lease for conservation purposes may not be clear.
• There may not be a precedent for using leasing authority for conservation purposes in specific areas.
• Valuation for lease fees or fee-title acquisition may be difficult.
• Representatives of agencies and private organizations may not understand or agree with the strategy, and may consequently resist it.
• To-date, the use of leasing and ownership as an ocean and coastal conservation strategy has been mostly opportunistic and uncoordinated.
• Leasing and ownership requires the cooperation of the landowner and the potential lessee or purchaser — this is a strategy that cannot by undertaken alone.