Rolling Conservation Easements
Legal Innovation
Between 2021-2025, Wetlands Watch pioneered an effort to design and implement the first-in-the-nation conservation easement that uses future sea levels to trigger conservation actions that facilitate wetlands migration: a rolling conservation easement. This project was completed in partnership with the Elizabeth River Project (ERP) and the Coastal Virginia Conservancy (CVC), the two legal parties to the easement.
The Elizabeth River Project will follow sea level rise through three monitoring triggers established in the rolling conservation easement.
The new easement centers on the Elizabeth River Project’s new headquarters in Norfolk, Virginia. The organization built its Resilience Lab on high flood risk property because their ambitious restoration efforts and educational programming required easy access to the Elizabeth River. ERP understood that the property would eventually be overtaken by rising seas, and committed to vacate the property and allow the wetlands to migrate fully onto it once operations became unsafe. But the organization lacked a formal legal agreement that ensured that their plans would be carried out.
Because there was no legal precedent for a land conservation-centered agreement tied to future sea levels, Wetlands Watch volunteered to design a new type of conservation easement that changes restrictions with changes in our climate. Working with land conservation professionals, sea level rise adaptation professionals, coastal engineers, and legal experts from across the country, we created a way for the Elizabeth River Project to ensure the safe, managed migration of wetlands onto their property.
Conservation easements are voluntary legal agreements between a landowner and a land trust that permanently limit land use in order to protect a property’s conservation values. Unlike traditional conservation easements, rolling conservation easements require the removal of structures when sea level rises so much that the water (publicly owned) completely overtakes the land (privately owned). This conflict of changing ownership from public to private is the reason the rolling easement tool was designed. The public/private ownership boundary rolls landward as waters rise, and the rolling conservation easement restricts future land use on the property, based on this rolling boundary.
How it Works
Wetlands Watch’s first-of-its-kind rolling conservation easement utilizes future sea levels as legal mechanisms, or “triggers,” that restrict future land use. The first formal trigger will be met when sea levels have risen by about three feet beyond what they are today, and the second, when sea levels have risen by another foot. When these triggers are activated (in approximately 2065 and 2075, respectively), the Elizabeth River Project promises to:
assess wetlands health and buffer migration capacity and perform maintenance on the Property to ensure water quality function, habitat provision, species health, and wetlands migration is maintained, while ensuring unimpeded wetlands migration onto the Property.
The final trigger, the “Deconstruction Trigger,” is projected to occur around 2085 when sea levels are about five feet higher than they are today. This will activate a clause that will require the Elizabeth River Project to discontinue the use of the property, remove buildings and structures, and return the property “to a condition where wetlands and shoreline buffer plant species can migrate onto the entirety of the Property unimpeded.”
By agreeing to the conditions of the rolling conservation easement, the Elizabeth River Project is leading the charge in wetlands migration efforts. Not satisfied simply to educate the public on best restoration practices, they are committed to the continued employment of these practices, even if it means vacating their own headquarters to provide a home for migrating wetlands.
The Coastal Virginia Conservancy is likewise showing extraordinary leadership in this project. They are the land trust legally responsible for enforcing this first-of-its-kind agreement, and without them, this wouldn’t be possible.
This project advances the rolling easement tool created by Jim Titus at the EPA in 1990 and the Shoreline Adaptation Land Trust (SALT) concept designed by John Englander in 2015.
Rolling conservation easements offer a financial incentive that we hope can be used as a tool to build equity as communities adopt property buy-outs and wetlands migration planning strategies. In Virginia, property owners can receive federal income tax deductions and state income tax credits for putting conservation easements on their property. The Elizabeth River Project did not earn tax deductions or credits because they are a non-taxed organization, but they are able to sell their state tax credits at $0.80 on the dollar because of Virginia’s favorable tax treatment of land conservation.
The Future of Rolling Conservation Easements
It is our hope that this innovative use of rolling easements will help serve as a blueprint for how Virginia safeguards wetland migration paths over the next pivotal decades.
On the matter of charting a way forward when rising seas threaten human structures, it is perhaps understandable that our first instinct is to defend what we have built. Even wetlands engage in defensive actions, repairing themselves after storms, droughts, and other significant weather events.
Sea level rise is not a weather event, however. It is a global climate effect at least a century in the making, and is not something that can be stopped through expensive actions like coastal armoring. The indiscriminate construction of expensive seawalls and pumping stations might save a property for a few decades, but what then? Seas will continue to rise, more expensive armoring actions will be required to keep up, and all this does is end up encouraging the hazardous habitation of lands below sea level.
Rolling conservation easements that are designed to protect wetlands as they migrate also help facilitate the orderly landward relocation of roads, and keep houses, families, and expensive community infrastructure safely off the high flood risk areas as the seas rise. Not only does this reduce significant hazards to public health and safety, but it also relieves local governments of the escalating costs associated with fighting a losing battle with the sea.
The fact of the matter is that human settlements, unlike wetlands, do not flourish in places that regularly flood with water. Migrating to higher ground is something that both wetlands and human beings will need to accomplish in the decades to come.
We should not allow our love for the water to blind us into thinking that we can hold back the sea. We need to think strategically. At the end of the day, we should not allow our desire to be close to the water destroy the natural ecosystems that drew us to the water in the first place.