What happens after a conservation lease ends?

One of the advantages of acquiring fee-title interests in or perpetual easements over lands and resources lying within ocean and coastal waters is that these mechanisms never end. There is no concern about what happens to the conservation targets at the end of a certain time period because the commitment to protection is forever (unless the interests are sold or condemned by a government entity with condemnation authority). Even some historical leases were granted in perpetuity, but unless these older leases are acquired most leases and lease-like authorizations will have termination points.

Subject to the applicable laws, terms of leasing mechanisms can be short (less than 10 years) or long (up to 100 years). At some point the leases will end and the leaseholders (for the purposes of this toolkit, conservation organizations) must determine what their options are regarding the future protection of the sites and resources.

The table below summarizes some of the options organizations have after their conservation leases end. The likelihood of implementing the options, the level of control over sites that each option affords organizations, and the level of protection each option affords over sites all vary.

Renew Lease

There is a high likelihood that organizations can renew their leases when they approach the end of the initial leasing periods. Renewing conservation leases maintains the organizations' control over sites with a medium to high level of protection (subject to the leasing provisions).

Leases may have built-in renewal clauses which allow for one or a series of additional years of leasing. It is not uncommon, for example, for leases to be issued for an initial period of time (five or ten years) with two or three renewal options of five to ten years each. If explicit renewal clauses are not built into the leases, leases may often be amended or extended for additional years. The total duration of any one lease issued by government agencies is normally limited by law or policy and a series of lease renewals or amendments usually cannot surpass the total time limit. Also, conditions of leases are often renegotiated during lease renewals and amendments. The lease is considered "open" at this point. As a result, lease features in addition to the lease duration may change. Under normal circumstances, when applicable laws and policies allow for lease renewals or amendments, lessees in good standing are successful in extending the duration of their leases.

Re-lease

There is also a high likelihood that organizations can re-lease sites when leases expire. Re-leasing sites is similar to renewing leases in that it maintains the organizations' control over sites with a medium to high level of protection.

When leases come to the end of their total allowable duration and renewals or amendments are not possible, it is often possible to enter into a completely new lease for sites. This option differs from the lease renewal option in that the entire leasing process is normally undertaken again. Lease applications, project design and planning, lease conditions, lease duration, and other facets of the lease are all once again under consideration and subject to change. Lessees are usually not guaranteed the right to re-lease, but if they are in good standing, re-leases are normally granted. It is rare for lessees in good standing who have invested substantial amounts of time and money into sites to be denied new leases for the same sites. While it is rare, it is not impossible however. Competing applications for use of the same site may complicate re-leasing. Some states have established criteria for evaluating competing applications while other states give preference to former lessees.

Let Lease Expire

Shorline aquaculture, Taylor Shellfish Farms. Photo courtesy Washington DNR.

Organizations may let leases expire on their own terms. While this is almost always an option at the end of leases, allowing leases to expire without any follow-up activities (such as those described below) leaves conservation organizations with no control over sites which no longer receive specific protection.

Upon expiration of a lease, several possibilities exist: 1) another entity may lease the site for conservation or compatible purposes; 2) another entity may lease the site for non-conservation or incompatible purposes; or 3) the site may not be leased again and is left fallow, but is used for transient purposes (such as public recreation and navigation). In the best possible scenario, another conservation organization leases the site and protects it. Less desirable is to leave the site fallow and hope that it is not disturbed. Even less desirable is that the site is degraded by a subsequent leased activity.

Short of other conservation organizations assuming leasing responsibilities for sites, there are several non-leasing options that may afford protection of sites and resources. Potential non-leasing options include designation of sites as marine protected areas, withdrawing sites from leasing, exchanging fee-title interests in sites other sites, or directly acquiring fee-title to sites.

Designate as Marine Protected Area

Sites that were leased for conservation purposes may be good candidates for designation as Marine Protected Areas (MPAs). However, the certainty of MPA designation and subsequent level of NGO-control over sites are often low. Also, the effective level protection created by MPA designation is uncertain.

In general, MPAs are considered some type of special management or protective designation. However, exactly how MPAs are defined and what they accomplish are subject to interpretation and also subject to the applicable laws that they are designated under. MPA designation can potentially be applied to publicly-owned or privately-owned sites, but there are numerous issues to be aware of with this approach.

There are countless different types of MPAs, some are more protective than others, some are applied by local governments while others are applied by state and federal governments, and some are regulatory while others are proprietary in nature. The MPA designation process can be complicated, controversial, and time-consuming. In addition, while conservation organizations (whether previous lessees or not) may be involved in the MPA designation process, MPA management planning process, and the site management itself, rarely can conservation organizations take the lead as decision-makers for government-established MPAs. As a result, conservation organizations would be subject to the decisions of the MPA-establishing public agencies.

On the positive side, MPA designation can bring much-needed attention, funding, and focus to sites that otherwise may not receive it. In the United States, the National Oceanic and Atmospheric Administration's National MPA Center is developing a framework for a national system of MPAs. Internationally, MPAs have received much attention and support from organizations such as the World Conservation Union's World Commission on Protected Areas Marine Program. A searchable database on MPAs throughout the world can be accessed through the MPA Global site. In addition, The Nature Conservancy has been working to build resiliency into MPA design and management through its Reef Resiliency efforts.

Withdraw from Leasing

The long-term protective benefits of withdrawals from leasing (when they are possible) are not clear. The likelihood of withdrawing sites from leasing and the resultant levels of protection are uncertain as processes and criteria for withdrawals vary widely. Additionally, the level of control over sites that NGOs achieve through withdrawals is likely low.

If leases are allowed to expire, in some cases it may be possible to petition lessors (the entities that granted the leases or other proprietary authorizations) to withdraw sites from leasing. In theory, withdrawing sites from leasing effectively prevents them from being leased again for purposes that will degrade the sites. Withdrawals from leasing are not possible in all locations and under all circumstances. The potential to withdraw any particular site form leasing will require specific investigation. Generally though, when withdrawals are possible, there are minimal but varied substantive and procedural requirements for petitioning the withdrawal, which stands in stark contrast to most MPA designation processes.

Still, as with MPAs, withdrawals from leasing involve several important issues that should be considered. Withdrawals from leasing may be subject to the sole discretion of proprietary agencies with little oversight by other entities or the public. As such, areas withdrawn from leasing may or may not be managed and protected over the short or long-term as specified in withdrawal orders. Also, while withdrawn status can often be in perpetuity, areas can often be undesignated (or un-withdrawn) as quickly as they can be withdrawn, so protection can be temporary at best.

Exchange another Area

Under some circumstances, fee-title ownership interests in lands and resources lying within ocean and coastal waters may be exchanged for other lands and resources. While there is a low likelihood that exchanges are possible, when possible, NGOs can achieve high levels of control and protection of sites.

Conservation organizations may want to consider trying to exchange other sites they own in fee-title for formerly leased sites when they want to further ensure the formerly leased sites' protection. The ability to exchange one site for another is dependent on several variables, not the least of which are the applicable laws, policies, and practices of the authorizing entities. If the authorizing entity is a public agency, there are often substantive criteria that must be met, such as resulting net gains of public assets. If the authorizing entity is a private party, then exchanges are often possible with little to no established processes or criteria.

Purchase Fee-title

Even more unusual than exchanges are outright fee-title purchases of publicly-owned, formerly leased sites. If the sites are privately-owned, then outright purchases are nearly always an option. While direct fee-title purchases of publicly-owned ocean and coastal assets were common (specifically in the United States) in the past, they are not common at present. But in some rare cases, fee-title purchases of publicly-owned lands and resources lying within ocean and coastal waters are possible. In most of these limited situations, fee-title purchases will give conservation organizations high levels of control and protection over sites. When fee-title purchases are possible, specific procedural requirements and substantive criteria usually must be met. In many cases, specific legislative authorization is also required.