What are the lessons learned from past conservation leasing and ownership projects?

Each Case Study in this toolkit provides an overview of leasing or ownership projects as well as a brief list of lessons drawn specifically from the projects. Below is a compilation of the lessons learned from all of the case studies in addition to experiences with other leasing and ownership projects. The lessons learned are categorized as:

Planning
Acquisition and Approval Process
Lease Terms
Site Management and Implementation
Programmatic

La Paz, Mexico. Photo ©The Nature Conservancy

Planning

People and places matter a great deal — organizations should think carefully about whom the individuals are that they will be working with and what sites are targeted for acquisition.
To the extent possible, a fully thought-out site plan should be in-hand prior to approaching land and resource owners. Plans for sites should include monitoring and adaptive management.
All authorization and permitting requirements should be known up front.
Private fee-title ownership options often exist in ocean and coastal environments; if insurmountable obstacles to leasing public lands are expected, acquisition of private lands may be an alternative. In fact, opportunities to own large tracts of submerged land exist, but the bundle of rights that comes with the properties may or may not be strong or clear.
There may be opportunities to lease areas for restoration purposes from states, but if organizations already own sufficient intertidal areas to be restored, then there may be no need to lease additional lands.
Regulatory and proprietary agencies often do not like to approve creation projects (i.e., projects that create new a new habitat type where did not historically occur). Restoration projects (i.e., projects that return previously existing habitat types to historical areas) are often preferred. Agency hesitancy to approve creation projects is particularly likely when projects displace perceived lower functioning habitat types for other, higher functioning habitat types. The other primary consideration is simply an intuitive assumption on reliability of success (if the site supported it before, it will more likely support it again).
Projects should account for the application of the public trust doctrine, which in many states allows public access to intertidal and subtidal areas. Given this, regulatory and proprietary agencies often do not like to exclude the public (for activities such as navigation, fishing, hunting, beach walking, and general access) from intertidal and subtidal lands and resources. Though in some cases, the public can be excluded even when the intertidal and subtidal lands and resources are publicly-owned. If public exclusion is necessary but questionable, an attorney should evaluate the situation closely.
To avoid user conflicts, it is easier to preserve a resource that is not being used to a major extent for subsistence or other economic endeavors by local communities. Conflicts may arise when communities and commercial commodity managers (e.g., shellfish companies) perceive that protection efforts may take prime ground out of production or physically interfere with commercial operations on adjacent sites.
Laws sometimes require productive use or harvest of resources for leased sites. This will require creativity on behalf of conservation project proponents; it also may require that laws be changed.

Acquisition and Approval Process

The acquisition process will take longer than expected, especially if precedent-setting. Though years of negotiations can pay off to preserve large and unique valuable tracts of intertidal land.
Good boundary descriptions and surveys prior to the acquisition are essential to understand exactly what area is included in the purchase. But surveying and up-front permitting requirements can be extensive, costly, and lengthy.
Before negotiating a possible purchase, one must determine who actually owns the intertidal lands and where the boundaries are. This discovery process can be difficult and protracted, and require extensive legal, surveying and title expertise.
External appraisal expertise may be needed to assess Fair Market Value of lands and resources. This may require special knowledge on the part of the appraiser that is not commonly held or applied within more traditional sectors of the appraisal industry (e.g., residential, commercial and industrial land valuation).
Agency scrutiny of the conservation plan and lease proposal may be great (greater than other, more traditional leasing projects).
Project funding that has timelines and deliverables associated with it helps keep projects moving. Funding that goes directly or indirectly to authorizing entities to help off-set expenses can be additionally helpful.
Perceived barriers to project authorizations are often greater obstacles than the true barriers (if any) created by laws.
In many cases, private conservation leasing and ownership is actually supported by the public trust doctrine and many state constitutions and laws.
Conservation proponents can and should be able to compete fairly with non-conservation project proponents for use of public lands and resources. However, certain designations and zoning may cause a proposed conservation activity (especially an exclusive one) to not compete fairly (i.e., equally) with other activities—such as navigation and transport of commerce. In some areas, including harbor areas, waterways and federally-designated navigation channels, other (non-conservation) uses may get preferential treatment.
Agency resistance to conservation leasing can be addressed by creating a rigorous application, planning, and review process.
Extensive work with government agencies during the acquisition process can enhance the understanding of environmental issues among authorities.
Required conservation plans and approval processes need to easily allow for adaptive management and phased implementation of restoration plans. As currently designed, many projects are expected to be completely designed and permitted for the life of the project/lease

Lease Terms

In-water, measurable results from restoration projects can take a long time, which needs to be considered if there are performance measures in leases.
Liability language in leases can put the burden on leaseholders for actions they cannot reasonably control (e.g., illegal dumping within lease site).
Lease contracts may (or may not) require monetary consideration in exchange for the leaseholder’s encumbrance of property. If so, the terms of valuation and periodic rental adjustment should be well understood. This should be carefully considered in budget planning for the conservation project.
Most lease contracts will require the leaseholder to provide and maintain certain contract performance security instruments (e.g., bonding or letter of credit) and insurance policies for the life of the lease. This also should be carefully considered in budget planning for the conservation project.
Construction, maintenance, removal and ultimate disposition of proposed improvements (if any) on the leasehold property should be carefully negotiated and documented in the terms of the lease contract.

Site Management and Implementation

Leases can be used to foster research partnerships.
Tracking leases is not a high priority for many state agencies.
Proprietary rights granted by states through lease mechanisms often trump other forms of management.
The learning curve on in-water restoration is steep.
Site management will be more successful if proposed actions are science-based, if economic and commercial interests are addressed, and if regular attention is given to effective communication with decision-makers and influential parties in the community.
Projects can benefit local communities by generating income, employment, markets for local produce, developing new work skills, demonstrating sustainable resource management, and restocking commercial fish species in adjacent areas (spill-over).
Keeping local towns informed of restoration efforts through letters and minimizing conflict with local industry maintains a positive image of the project, which is beneficial to its success.
Conservation organizations that are landowners and lessees have unique places at the table to work with state agencies in planning for restoration and management of large areas.
Cooperation among all stakeholders is critical to ultimate success.
Managing for population recovery and resiliency in the face of disease will require an approach that protects larger, older oysters as broodstock.
Poaching on oyster sanctuary reefs is a major problem since oysters are left on the reefs and not harvested. Specifically, enforcing trespass and theft laws, catching and documenting the larceny, and proving proprietary rights are complex legal problems at the local level.

Programmatic

The long-term, future demand for conservation leasing is uncertain. For state conservation leasing programs to succeed, organizations must make the investment to take lead roles in managing ocean and coastal lands and resources.
Private management of in-water sites and resources can be effective and economically viable, even in a challenging political climate. Private managers have strong incentives to achieve tangible conservation goals on the ground, co-operate with local resource users, generate income, be cost-effective, and keep overheads down.
Long-term secure tenure, together with favorable political, legal and institutional environments, is needed to attract more private conservation investments in the developing world.
In developing countries, ambiguous regulations and wide discretionary powers of civil servants in the area of land leases, building permits, business licenses, immigration and labor laws encourage corruption, and are thus hurdles to doing business, by drastically delaying developments and increasing costs.
Investment in conservation and in environmentally sound technologies, as well as the employment of additional staff for management and environmental education programs, raises costs considerably, making it more difficult to compete with non-conservation tourist destinations. Favorable tax treatment could encourage such investments.
Laws can be enacted that incorporate conservation leasing and ownership into the management of public lands, but new controversies can still arise.
Conservation leasing and ownership of public lands may be in conflict with real or preceived trust mandates, such as funding public education.
Conservation land sales can generate significant revenues.