1.1 Lease and Own 101

The prospect of conservation leasing and ownership in ocean and coastal environments often stirs up questions that should be addressed before developing and implementing a project. While people often understand the need to conserve coastal zones, fisheries, and water quality, they often do not understand how proprietary mechanisms can achieve conservation of ocean and coastal environments. Indeed, even among seasoned marine scientists and managers, ownership rights, management options, and conservation strategies for the lands and resources within ocean and coastal waters are often not well understood.

The Strategy

Conservation leasing and ownership of ocean and coastal lands and resources means acquiring fee-title or less-than fee-title interests in inter-tidal and sub-tidal lands and associated resources to protect, manage, or restore ocean and coastal biodiversity. This is as simple as it sounds -- either leasing or buying lands or associated resources lying within ocean and coastal waters for conservation purposes.

In this toolkit, the terms leasing and ownership are used very broadly. Leasing refers to any type of less-than fee-title acquisition of public or private lands and resources. While the term lease most often applies to publicly-owned lands and resources, leases for privately-owned lands and resources can and do occur. However, less-than fee-title acquisitions of privately-owned lands and resources are most commonly referred to as easements. Other less-then fee-title authorization mechanisms for both publicly-owned and privately-owned lands and resources include, but are not limited, to licenses, permits, and assents. While the title of many less-than fee-title authorization mechanisms implies certain rights and conditions based on property law and common law, the specific terms and conditions spelled out in each document must be carefully developed and assessed. In the end, there can be extremely similar terms and conditions in any one of the above-listed less-than fee-title authorization mechanisms.

The term ownership refers to a fee-title transfer of rights to public or private lands and resources. Most opportunities for fee-title acquisition of lands and resources lying below the high water line are from current private owners. Although it was common in the past in the United States for state governments to sell fee-title interests to publicly-owned lands and resources, it is uncommon now. Given this, most acquisition opportunities for publicly-owned lands and resources are less-than fee-title. Whether acquiring fee-title ownership from public or private owners, it is critical to understand that lands and resources lying within ocean and coastal waters often carry certain restrictions that terrestrial lands and resources do not carry. The portion of the bundle of sticks that is acquired with the transfer of fee-title ownership of lands and resources lying within ocean and coastal waters may not include the rights to exclude the public, certain commercial or recreational activities, and navigation, among other things.

Whether acquiring less-than fee-title interests through a leasing mechanism or fee-title interests through the transfer of complete ownership rights, the ultimate goal is for private conservation organizations to acquire the ability to control what is happening on sites for extended periods of time.

Similar to Existing Terrestrial and Freshwater Strategies

Conservation leasing and ownership of ocean and coastal lands and resources is similar to the widely used and understood conservation practices of traditional upland acquisition and conservation easements. The primary difference is that in this case, the strategy is being applied to lands lying under ocean and coastal waters that, in many cases, are publicly-owned.

In concept, the intent of this strategy is similar to upland conservation easements and water rights acquisitions. Similar to upland conservation easements, a conservation lease may give the lessee the right to protect the site and habitat features from destructive activities and development. Similar to water rights acquisition in which water is left in streams for conservation purposes, conservation leasing establishes conservation (i.e., no use in the minds of some) as a legitimate use that can be acquired and protected.

Conservation leasing of ocean and coastal lands and resources differs from upland conservation easements in that conservation leasing typically has a specific term (or time period), is on public lands, and usually requires some form of active, participatory management, as opposed to simply preventing property from being developed.

Different from Existing Marine Conservation Strategies

There are numerous existing marine conservation strategies that may be used in concert with or isolation of conservation leasing and ownership. It is useful to identify a few of the existing strategies that may be confused with conservation leasing and ownership such as marine protected areas, compensatory mitigation, and recreational parks.

Marine protected areas (MPAs) can be very similar to conservation leasing and ownership projects in that specific geographic areas of the oceans and coasts are identified and managed for conservation, restoration, research, or educational purposes. The primary difference is that in most cases, government entities are the leads for MPAs while private entities are the leads for leasing and ownership projects. While private entities may have some role in MPA development and management, rarely do they have lead roles with proprietary rights. For more information on marine protected areas, see the IUCN/World Commission on Protected Areas Marine Program, the U.S. National Marine Protected Areas Center, and The Nature Conservancy’s work on MPAs and resilience.

Compensatory mitigation projects are undertaken to satisfy regulatory requirements to compensate for impacts from authorized development projects or unauthorized spills and accidents. While mitigation projects may serve to improve and protect habitat conditions at specific sites, it is normally done to off-set impacts at other sites. In most cases there is little or no net gain in improved or protected ocean and coastal habitats. Conservation leasing and ownership on the other hand is not driven by regulatory requirements and is not being done to off-set specific impacts caused by project proponents. In most cases, there should be increased habitat improvement and protection as a result of leasing and ownership projects. There are numerous types of compensatory mitigation projects. For more information on compensatory mitigation and mitigation banking in the U.S., see the Environmental Protection Agency site on Wetlands and the National Mitigation Banking Association.

Coastal and marine parks often protect land and habitat, but usually as a by-product of providing public access and recreation. In some cases, ocean and coastal biodiversity may be sacrificed to provide increased or improved visitor experiences. While conservation leasing and ownership may provide public access and recreational opportunities, it would normally be as a by-product of restoring and conserving ocean and coastal lands and resources. For an example of a marine park system, see the New South Wales Marine Park Authority.

Image: Tomorrow we will study Saturn... Honoré Daumier, 1846. Source: Brandeis University, Honoré Daumier Digitized Lithographs, http://dcoll.brandeis.edu/handle/10192/1814