Conserving the Easements

The nature and expectation of "conservation easements"

There's nothing like a good discussion of real-estate law to make the most committed environmentalist want to slip out the back and take a hike, but the fact remains that conservation easements in Texas have become a crucial tool for preservation. So hold on a second, and maybe you'll learn something. Under Proposition 2, in addition to 7,169 acres purchased by the city of Austin on the open market -- a little less than half of the property designated Water Quality Protection Land -- the Water and Wastewater Utility arranged to purchase or receive as donations the "development rights" to an additional 7,706 acres that still belong to the original landowners. What this means is that while the property remains private, the owners have agreed not to subdivide their land, not to use noxious pesticides or herbicides that could pollute the Edwards Aquifer, and -- in those cases where some building will still be allowed -- to keep impervious cover at 1% or less of the total available land. These legal arrangements are what's known as conservation easements.

What's more, according to Jeff Francell, who helped arrange the conservation easements when he was still working for the Nature Conservancy (he has since moved on to a position with the state Parks and Wildlife Dept.), the city has helped redefine the way easements are arranged in Texas. Instead of relying simply on donations, as has been traditional across the state, Prop. 2 paved the way for the city to buy development rights on land in the Barton Springs contributing and recharge zones. This allowed the city to work with landowners who might have been unwilling to sell their property outright, and also saved the city about half the cost of buying the land. And while management decisions will generally be left to property owners -- the city has reserved the right to check compliance under the easements annually -- the upshot is that the land will be preserved "in perpetuity," as the lawyers say, maintaining a state benefiting water quality without requiring future expenditures.

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