Documents EY..it Proj . No . 2001 KNIGHT QH 87.3 .R67 1998 WETLAND CONSERVATION EASEMENTS AND PLANNING: OLD PROBLEMS, NEW SOLUTIONS? A CASE STUDY IN VENETA, OREGON by CAROL SUSAN ROSSKAM A MASTER'S PROJECT Presented to the Department of Planning, Public Policy and Management and the Graduate School of the University of Oregon in partial fulfillment of the requirements for the degree of Master's in Community and Regional Planning December 1998 "One person's pristine prairie pothole worthy of eternal protection is another's mosquito-choked mudflat fit only for a shopping mall. The dreams of wheat farmers and golf course tycoons - not to mention ecologists -- often ride on wildly different readings of the land'. by Bruce Selcraig, in 'What Is a Wetland? The best way to find out is to wade right in '. http://www.sierraclub. orglsierra/199605/mjweteco.html The text of this document is printed on Acid-Free paper made of: 25% hemp, elemental chlorine-free 25% cotton, totally chlorine-free 50% post-consumer waste, processed chlorine-free ACKNOWLEDGEMENTS It is a great honor to express my heartfelt gratitude to the many people who have guided, supported and encouragecl me throughout the journey in graduate school, and the entire thesis proce,s s. To my family, it is difficult to really express what I feel about your endless unconditional love, support, encouragement, and ability to see what I could do even when I could not see it. Mom-Roberta Rosskam, Dad- Richard Rosskam, sisters and brother in-laws -- Joanne and Jeffrey Aliber, Ellen Rosskam Krasnosse/ski and Alexander Krasnosse/ski, grandmother Ruth Ginsburg, aunt Judy Feld, and my endlessly helpful nephews Matthew and Joshua Aliber who sometimes gave me the most creative advice of all! Joseph and Miriam Elma/eh, and Hana Rosskam, your special help and thoughts enabled me to take the leap and begin graduate studies! Finally, to my great-grandparents, most of whom I knew, for leaving their memory as a mark on me (and the rest of us who followed) - for it is through memory and history that I began to see how education and critical thinking are the threads that weave together justice and change. My professors and advisors who helped me throughout the process of this project include Dr. Mike Hibbard, whose excellent advice and never-ending support guided me through my academic progress at the University of Oregon. His feedback on this project was invaluable and a crucial part of each step on the way to its completion. Dr. Rob Ribe's thought provoking questions helped me gain a new level of appreciation for landscape level planning that I integrated into this project. Steve Gordon's enthusiasm for wetlands helped me to crystallize my project focus and critique the many ideas that I posed to him. Each of these individuals gave me precious pieces of advice, and new insights into complex issues. Dr. Dennis Todd of the University of Oregon Clark Honors College (and Oregon Country Fair Land Use Management Plan Committee, or LUMP) and David Liberty, member of the Oregon Country Fair Board and LUMP, provided me with critical technical advice that was crucial to the accuracy of details pertinent to the Veneta area. Dr. John Baldwin's responses to my project questions were always helpful and appreciated. Dr. Kadiatou Coulibaly, dear friend and mentor, shared strategies with me that were invaluable when I conducted and analyzed the interviews, and reconfigured the presentation of the information. Excellent editing on the first three chapters was completed by Roberta Rosskam. Zudegi Tala's special assistance was invaluable. The interest, dedication and patience demonstrated by the 11 interviewees was immense, as is indicated by the length of time they spent with me during the interview process. Thanks to Dr. Richard Lai, who taught me Planning and Law at Arizona State University, I learned new language that enabled me to articulate my interest in wetlands. The years of endless support from my undergraduate Geography professor, Dr. William Osei, have been crucial to my graduate studies and delving into the depths of dedication I found necessary to complete this project! Some of my former supervisors (who are now friends) have dramatically influenced my interest in planning and natural resources and have been sources of constant support throughout this entire process - Cynthia Hawksworth of Victoria, B.C., Dr. John Knox of Honolulu, Hawaii, and from the B.C. Forest Service: Ian Graeme, Evelyn Hamilton, Dr. Lynn Husted, Brian Nyberg, and Dr. Roberta Parish. I was fortunate enough to work with many dedicated researchers at the B. C. Forest Service Research Branch (/RM Section) and B.C. Ministry of Environment Wildlife Section who work hard, diligently, and want to make a difference. They truly inspired me to continue my education and rise to their level of excellence. Last but never least, my friends who extend from Eugene, Oregon to the southern parts of the southern hemisphere. You are large in number and bigger in heart. I will name you by country, region or state, as I dare not forget any single one of you! Beginning with my friends near and dear in Eugene (notably Aliza Vaccher who graced my life here since she was 3 years old), and extending throughout other parts of the United States - in: Arizona; California; Colorado; Hawaii; Illinois; Oregon, Pennsylvania; Tennessee; Texas; Washington, D.C. ; and Wisconsin. Canada - in Alberta, British Columbia, Ontario, and the Yukon Territory . My two brothers in Africa - Abouba in Niamey, Republic of Niger, and Nkosana in Diepkloof, Soweto, Republic of South Africa, your hundreds of emails gave me strength to go on! Bhutan. Israel. Russia. Taiwan. There are so many of you who helped me stay in school , get this paper done, and rise to the occasion I ABSTRACT An Abstract of the Master's Project of Carol Susan Rosskam for the degree of Master's in Community and Regional Planning in the Department of Planning, Public Policy and Management December 1998 Title: WETLAND CONSERVATION EASEMENTS AND PLANNING: OLD PROBLEMS, NEW SOLUTIONS? A CASE STUDY IN VENETA, OREGON This case study evaluates whether a Wetland Conservation Easement is the best tool to assure wetland protection in Veneta, Oregon. To research the issues, an extensive literature review was conducted, and ten personal interviews were completed with a variety of people who work with, or are interested in wetlands. In addition, one interview was completed with an electronic mail response. Based on the findings of this study, Wetland Conservation Easements should be implemented in the Veneta area as they would facilitate wetland protection there and provide numerous benefits to the stakeholders that are involved. ii TABLE OF CONTENTS ACKNOWLEDGEMENTS ABSTRACT ii CHAPTER 1 - INTRODUCTION 1 1.1 The Beginning 1 1.2 Purpose 4 1.3 Methodology 11 1.4 Organization of the Paper 15 1.5 Summary 17 CHAPTER2-BACKGROUND 19 2.1 Description of the Study Area 19 2.2 The Issues 25 City of Veneta 25 Oregon Country Fair 28 Forrest Larson 34 2.3 The Proposals 36 Wetlands on Oregon Country Fair Property 36 City of Veneta Property that may be exchanged 38 with OCF City of Veneta property used for OCF camping 38 City of Veneta property with Lomatium bradshawii 38 Larson Property 40 2.4 Conflicts: Wetlands and Development 40 2.5 Wetland Conservation Easements 43 Definition 44 Goals 45 CHAPTER 3 - CRITICAL ISSUES IDENTIFIED BY THE INTERVIEWEES 50 3.1 Communication and Education 51 3.2 Management and Certainty 55 3.3 Financial Incentive 59 3.4 Fosters Win-Win Situation 62 3.5 Protection and Corridors 66 CHAPTER 4 - CONCLUSIONS AND RECOMMENDATIONS 72 4.1 Synopsis of Wetland Issues 72 4.2 Revisiting Critical Issues From the Interviews 73 Communication and Education 73 Management and Certainty 74 Financial Incentive 75 Fostering Win-Win Situations 75 Protection and Corridors 76 4.3 Recommendations 76 4.4 Conclusions 78 REFERENCES 79 APPENDICES A-1 List of Interviewees A-1 A-2 Interview with Joseph Edney A-2-1 A-3 Interview with Edward Alverson A-3-1 A-4 Interview with Tracy Brown A-4-1 A-5 Interview with Allen Mackinson A-5-1 A-6 Interview with Jan Wellman A-6-1 A-7 Interview with Jerry Elliott A-7-1 A-8 Interview with Leslie Scott A-8-1 A-9 Interview with Larry Devroy A-9-1 A-10 Interview with Annette Lalka A-10-1 A-11 Interview with Art Farley A-11-1 A-12 Response by electronic mail from Mary Kentula A-12-1 B City of Veneta Memorandum B-1 C Checklist I: Model Conservation Easement Complete Outline C-1 D Checklist II: Short Form Conservation Easement The Essentials of Conveyance 0 -1 E Model Conservation Easement E-1 LIST OF FIGURES Figure 1 Extent of Wetlands By Type in Conterminous 48 States 8 Figure 2 Location of the Upper Long Tom River Watershed 20 Figure 3 Upper Long Tom Watershed Lane County, OR 21 Figure 4 Study Area Major Land Owners 22 Figure 5 Study Area Wetland Features 23 Figure 6 Oregon Country Fair Vicinity Map 29 Figure 7 Oregon Country Fair Map 30 Figure 8 Approximate Location of Proposed Wetland 37 Conservation Easements LIST OF TABLES Table 1 Final Interview Categories 13 Table 2 Partial List of Birds and Wildlife found in the Applegate District Wildlife Management Unit 35 Table 3 Wetland Reserve Program Landowner Options 47 Table 4 WRP Eligibility Criteria for the Land 48 Table 5 Major Topics Discussed By Interviewees 50 GLOSSARY OF TERMS AND ABBREVIATIONS ACOE U.S. Army Corps of Engineers CE Conservation Easement(s) cov City of Veneta DEQ Oregon State Department of Environmental Quality DSL Oregon Division of State Lands EPA U.S. Environmental Protection Agency NFWF National Fish and Wildlife Federation NPDES National Pollutant Discharge Elimination System NRCS National Resource Conservation Service OCF Oregon Country Fair ODFW Oregon Department of Fish and Wildlife TNC The Nature Conservancy UGB Urban Growth Boundary U.S. United States USDA United States Department of Agriculture USFWS U.S. Fish and Wildlife Service WCE Wetland Conservation Easement(s) WRP Wetland Reserves Program CHAPTER I INTRODUCTION 1.1 The Beginning This project begins in the 1960's, when I was growing up in the "suburbs" just outside of Philadelphia, Pennsylvania. These suburbs were characterized by older houses that were built early in the 20th century, and in some cases during the latter part of the 19th century. Living in this part of the United States (U.S.) meant that the temperatures in July and August exceeded 90-95 degree F, humidity often stagnated at 95 percent, and the weather was generally unbearable during that part of the year. Like any family that could somehow escape these uncomfortable conditions, my family (my parents, two sisters, the dog and I) went to "the shore" every August. "The shore" is Philadelphia area lingo for those parts of New Jersey along the Atlantic Ocean that were known for its boardwalk, miles of fine sand beaches, salt water taffy, big waves, and clean air. Every year in late August, we loaded up the family car (usually packed to the hilt) for the two hour drive to New Jersey. We stayed in Ventnor, Margate or Long Beach Island which are areas adjacent to Atlantic City, a famous resort area since the 1890's. Towards the end of the drive that my sisters and I always thought was so long, there was great excitement as we approached the salt marshes and estuaries that preceded the ocean communities to which we were headed. As soon as the distinct smell of those wetland areas hit us, we all rolled down the windows to breathe in that famous salty, cool, invigorating, marshy smell. The smell signified that the journey from Philadelphia was nearly over and we were "almost there". At that point, my sisters and I always created quite a ruckus in the back seat as we wanted all passing motorists to know that soon we would Chapter 1: INTRODUCTION 1 Carol S. Rosskam Master's Project arrive at the shore! Some of my most vivid memories of those days relate to the distinct smell of those marshy wetlands, and the excitement that my two sisters and I felt as we passed by them. Wetlands were part of my life back then, although I had no idea what they were. was only 12 years old when the first Earth Day took place in the spring of 1970. In those days, we, the children growing up in the United States during the 1960's, did not learn about the complexities of ecosystems or environmental issues like most children are taught in school today. Despite this, I was already aware of and writing letters about "the environment" by fifth grade. Even though I lacked knowledge and understanding of wetland issues and terminology at that time, by the early 1970's I already realized that things had dramatically changed at the shore. From my earliest recollections of being there, such as my catching the four foot eel in the lagoon (in 1962 at age five) , to the time the first Earth Day had come and gone, it became obvious to me that the air and water "down at the shore" were not as clean as they once were, and there was a noticeable increase in the amount of garbage and tar floating up onto the beaches. By the 1970's, it was much more difficult to find the clean air at the shore that was so important for my (non-smoking) maternal great-grandfather's emphysema condition. This good air kept him, and my great-grandmother, living and working in the Ventnor/Margate area between the 1940's and late 1960's. Only now, decades later, am I beginning to contextualize what I observed back then and the meaning of the changes in smells to the wetlands, or the degree to which the daily DDT sprayings adversely impacted the health of myself and my family (my sisters and I used to sneak outside whenever possible to greet the "spray man" - our name for the jeep and its drive that rolled by each day at 5pm Chapter 1: INTRODUCTION 2 Carol S. Rosskam Master's Project I spraying a fog of DDT that was supposed to eliminate the mosquitoes). It is these experiences that create the foundation for my academic, professional and personal interests in Environmental Planning. Nearly thirty years later and beginning graduate studies in Environmental Planning, I found myself vaguely familiar with wetland issues but still lacking any significant understanding and knowledge of their ecological intricacies. Considering how much time I spent around wetlands while growing up on the east coast, I felt a responsibility to learn more about them. I had the chance during my first semester of graduate school in a Planning and Law class that I took with Dr. Richard Lai in Tempe, Arizona. Having just relocated there after living in Canada for 20 years, I used this as an opportunity to study the "no-net loss" policy the Bush administration had recently implemented to protect America's wetlands. The information I learned about during the course of that research served to inspire my fascination with wetland issues and the prevailing "dredge and fill" attitudes towards them that are so slow to change. Later that same year, I moved to Eugene, Oregon to continue graduate studies. Shortly after the fall term began, I attended a brown bag lunch seminar where Steve Gordon from the Lane Council of Governments spoke about the West Eugene Wetlands Plan. I was so intrigued with his description of local efforts to protect wetlands that I decided to write my Master's Project on a closely related topic. The following year, after meeting Dr. Dennis Todd, a University of Oregon professor who was also involved with local wetland issues, I learned about wetland conservation easements being considered in the Veneta area west of Eugene, Oregon. This information helped me to crystallize the topic on which this Master's Project is based, and provides a context in which I can link my interests in wetlands with the planning process as well as dispute resolution. Chapter 1: INTRODUCTION 3 Carol S. Rosskam Master's Project 1.2 Purpose Wetland Conservation Easements, the focus of this Master's project, is an important concept to study for a number of reasons. They embody a paradox; whereas wetlands' value as an ecosystem is recognized more than it has in the past, and there are now numerous laws and programs to protect them (Salvesen, 1990; Mitsch and Gosselink, 1993), their rapid disappearance continues from the landscapes within and outside the U.S. (Dugan, 1994; Salvesen, 1990). At the same time, more vociferous demands are being made for wetland protection by a diverse array of individuals and groups within the public, private and non-profit sectors as well as grass-root, community based organizations (Dugan, 1994; Mitsch and Gosselink, 1993; National Research Council, 1995). Underlying the loss of wetland habitat are the issues of population, growth, and development, all of which propel expansion into diverse ecosystems such as America's wetlands. Until the question of exponential human population growth is addressed at local, regional , national and global levels, population pressures will continue to encroach on increasingly limited natural resources like wetlands. This project is relevant to a number of interrelated planning issues, including public participation, natural resources, development, growth, and environmental impacts associated with development. The subject matter is also influenced by the endless number of regulations and planning tools that are being used to cope with the effect of population growth on shared, natural resources. Throughout the development of this case study, I attempt to consider and integrate these ideas with concepts like scale, connectivity, the notion of "success", and the meaning of "effective" in terms of wetlands and Wetland Conservation Easements. Chapter 1: INTRODUCTION 4 Carol S. Rosskam Master's Project Wetlands are one of the most productive natural ecosystems on earth, providing critical habitat for flora and fauna, flood protection, and maintaining water quality (Mitsch and Gosselink, 1993; Salvesen, 1990). They are ubiquitous, located on every continent except Antarctica, and in a range of climes including tundra and the tropics (Mitsch and Gosselink, 1993). "Wetlands" is a collective term for swamps, bogs, fresh and salt water marshes, wet meadows, ponds, estuaries, prairie potholes (from receding glaciers) and similar areas that form an interface between terrestrial and aquatic ·e cosystems (Runyon and Helland, 1995:2). They combine attributes of terrestrial and aquatic ecosystems, and yet they are neither one or the other (Mitsch and Gosselink, 1993). Wetlands are often categorized as tidal or non-tidal, which is based on their water regimes and coincides with legislative rulings (Salvesen, 1990). It is difficult to develop a precise definition for wetlands because of their vast geographical extent and the diverse hydrologic conditions in which they are found (Mitsch and Gosselink, 1993). As a result, there are more than fifty definitions of wetlands. Formal definitions have been developed throughout the world, but some of the most widely accepted ones were articulated by an international treaty known as the Ramsar Convention, by Canadian scientists, and U.S. federal agencies. Most scientists agree that an area is a wetland if one or more of the following attributes exist (Runyon and Helland, 1995:2; Tabatabai, 1994): 1. At least periodically the land is saturated or covered by shallow water sometime during the growing season of the year; 2. The land supports hydrophytic (water-loving) plants; 3. The subsurface is predominantly undrained hydric soil. (Runyon and Helland, 1995:2; Tabatabai, 1994). Chapter 1: INTRODUCTION 5 Carol S. Rosskam Master's Project In the United States, two of the most widely accepted wetland definitions were developed by three federal agencies - the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE), and the U.S. Fish and Wildlife Service (USFWS). The EPA and ACOE use a regulatory definition of wetlands which the U.S. Supreme Court upheld in 1985: "Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas" (33 CFR Part 328.3 and 40 CFR Part 230.3, in Tabatabai, 1994:2). One of the most comprehensive wetland definitions, adopted by USFWS scientists in 1979, is now widely accepted by wetland scientists in the U.S. : " ... lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is covered by shallow water. For purposes of this classification wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes, (2) the substrate is predominantly undrained hydric soils, and (3) the substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year" (Mitsch and Gosse/ink, 1993:25). It is difficult to estimate the extent of wetlands worldwide, but the most commonly used approximation is that they cover 6% of the earth's land surface (Mitsch and Gosselink, 1993:4). On a global scale, the extent of human impact on wetland loss cannot be assessed, although scientists believe that its magnitude ranges from "significant to total" in developed and heavily populated regions (Mitsch and Gosselink, 1993:5). According to the USFWS's National Wetlands Inventory, wetlands once occupied about 200 million acres, or 11 % of the contiguous United States (Runyon and Helland, 1995:1). Today it is only 5% wetlands, representing a loss of at least 50% (Runyon and Helland, 1995:1; National Academy of Sciences, 1995; Salvesen, 1990:18; The Wildlife Chapter 1: INTRODUCTION 6 Carol S. Rosskam Master's Project Society). Approximately 75% of the wetlands remaining in the conterminous 48 states are privately owned (EPA, 1995:30). Until very recently, much of America's wetlands disappeared as a result of federal government policies that promoted wetland conversion for private development, agricultural practices, public projects or other purposes that were incompatible with wetlands' existence (National Research Council, 1995:1 ; National Academy of Sciences, 1995:1). For example, the federal government used the Federal Swamp Land Acts of 1849, 1850 and 1860 to deed more than 60 million acres of wetlands to 15 states for conversion to agriculture (Salvesen, 1990:20; National Research Council, 1995). While significant wetland losses occurred because of federal swampland acts, federal and state policies and ACOE drainage projects, much of the conversion was initiated by private interests. The private sector had a significant influence on the development of wetlands into the croplands that now form an integral part of the U.S.'s agricultural resource base (National Resource Council, 1995). The distribution of converted wetlands across the United States is uneven and varies according to many factors including wetland type (see Figure 1). The highest rate of conversion occurred in those states where it was both "feasible and profitable", or where the extent of wetlands was limited but corresponded with areas suited to agriculture and population growth (National Research Council, 1995:17). Wetlands still exist in every U.S. state, yet twenty-two states have already lost over 50% of their original wetlands (EPA, 1995:5). Of these, the losses in seven states exceeded 80% by the 1980's and reached more than 90% in California, Iowa and Nebraska (EPA, 1995:5; Runyon and Helland, 1995:1; Salvesen, 1990:19.) Chapter 1: INTRODUCTION 7 Carol S. Rosskam Master's Project FIGURE 1: EXTENT OF WETLANDS BY TYPE IN CONTERMINOUS 48 STATES Other T"""'......,....,.,... ____ __. ....., Inland 8. Coastal >, ,I,- Inland C "' Shrub ;ii: Inland Marshes Inland Forest 0 10 20 30 40 50 Acres (in MIiiions) Source:Salvesen, 1990:20. As a natural resource, wetlands provide a multitude of essential ecological, economic, social and other values, and are considered to be "one of the most significant ecosystems in terms of their ecological functions, and their human-use values" (Tabatabai, 1994:2). Nearly 43% of North America's threatened and endangered species rely directly or indirectly on wetlands (EPA, 1995:2; Runyon and Helland, 1995:2). Wetlands function like kidneys, filtering out pollutants to purify water before it enters water bodies (Mitsch and Gosselink, 1993; Salvesen, 1990). Similar to the human body kidneys and the difficulty it has functioning without them, planet Earth also suffers without the use of its kidneys - the wetlands. Despite this, wetland degradation and destruction continues globally: In the United States, our perceptions of wetlands have improved dramatically (National Research Council , 1995; Tabatabai, 1994). We no longer consider them to be "swamps ... what muskrats dream about...what charlatans in Florida used to sell to unsuspecting retirees in New York" (Salvesen, 1990:14). However, controversy still exists in many places between the disparate and often conflicting forces of development and Chapter 1: INTRODUCTION 8 Carol S. Rosskam Master's Project wetland protection (EPA, 1995:15-17; National Research Council, May 9, 1995; Sibbing, 1997). According to the chair of a National Research Council wetlands committee, " ... wetlands regulation is a source of considerable friction between private landowners and the federal government for many reasons, but multiple definitions, field manuals, and agency responsibilities have contributed to confusion among citizens and corporations whose land may be affected" (National Research Council, Press Release, May 9, 1995:1). Increasingly, people are acknowledging the importance of wetlands and voice concerns over the rapid rate at which their acreage, values and functions are being lost, and how ubiquitous it is (EPA, 1995; Mitsch and Gosselink, 1993; National Research Council, 1995). As a result of more widespread- concern over wetland loss, a myriad of policies, programs, plans and planning tools have been initiated. At the federal level, the Clinton Administration responded to this situation by convening an interagency working group that addressed concerns with federal wetland policy. The working group proposed a comprehensive, 40-point plan to improve wetland protection and ensure wetland regulations were more fair, flexible and effective (EPA, 1.995:7). The Administration introduced its Wetland Plan in August 1993, emphasizing improvements to federal policies by: • streamlining wetlands permitting programs; • increasing cooperation with private landowners to protect and restore wetlands; • basing wetland protection on good science and sound judgment; • increasing participation by States, Tribes, local governments, and the public in wetlands protection (EPA, 1995:7). Since that time, the Clinton Administration has taken a number of actions to implement the Wetlands Plan. This indicates that more attention is being focused on wetland ecosystems and the need to develop and implement measures to protect them. Wetland Conservation Easements provide an example of a planning tool being more widely used to mitigate wetland losses and help to overcome conflicts between different interest groups including environmentalists and developers. A Conservation Easement is "a Chapter 1: INTRODUCTION 9 Carol S. Rosskam Master's Project legal agreement a property owner makes to restrict the type and amount of development that may take place on his or her property" (Diehl and Barrett, 1988:5). Each easement has restrictions specific to the property and the property owner's interests (Diehl and Barrett, 1988). In general, the name of an easement is based on the resource it protects; agricultural easements preserve agricultural operations, scenic resources are referred to as scenic easements, and wetland conservation easements protect wetlands (Diehl and Barrett, 1988). Some advocates of conservation easements suggest that in many situations they are "the most useful tool to accomplish the reasonable goals of owners and their families and preservation and conservation groups, public and private" (Diehl and Barrett, 1988:144). Similarly, proponents of Wetland Conservation Easements believe they succeed in preserving and protecting wetlands (Scott, Personal Communication: February 27, 1998; Nowlan and Jeffries, 1996). Others support its use as an effective planning tool because it helps eliminate fears that may otherwise develop because of burdensome regulations and regulatory takings 1 claims (Devroy, Personal Communication: March 5, 1998; Wiebe et.al., 1996). In contrast, there are critics who claim that even with "innovative" efforts to protect wetlands , net wetland losses still occur, biodiversity is not preserved, and it is the developers who are served rather than the ecosystem and the public (Zedler, 1988). Ultimately, it is difficult to reveal the true nature of the forces that motivate public and private sector decisions about wetlands and development. Certainly, one of the goals of this inquiry is to facilitate more critical thinking about mitigating wetland loss in general, and how effective conservation easements are as a tool that supposedly inhibits those losses. 1 The denial of an individual's right to use his or her property is referred to as a "taking". Courts have held that overly strict regulations may be interpreted as a "taking of property" requiring compensation under the U.S. Constitution's Fifth Amendment. However, the point at which restrictions become too restrictive has proven difficult to define and the issue continues to be widely litigated. Since Chapter 1: INTRODUCTION 10 Carol S. Rosskam Master's Project In Veneta, Oregon, located approximately twelve miles west of Eugene, the interface of population growth, development, infrastructure needs and wetland protection led several individuals and agencies to consider using Wetland Conservation Easements as a pro- active step that would address these complex issues. This case study is based on the situation that has evolved in Veneta, and how it brought the Oregon Country Fair and the City of Veneta to consider implementing Wetland Conservation to address these challenges. The key question to be answered by this case study is as follows: Is a Wetland Conservation Easement the best tool to assure wetland protection in Veneta, Oregon? 1.3 Methodology To answer this question I used two qualitative research methods. The first was to review various information sources including: a doctoral dissertation; books; case studies; journal articles; newsletters from state and federal agencies; newsletters from non-profit organizations; reports by federal agencies; and reports by non-profit organizations. The second research method was open-ended interviews. Ten were conducted in person, and an eleventh response was received by electronic mail (e-mail). The interviews are the most crucial component of the research. Personal interviews were conducted because they are an information gathering tool that is appropriate, effective and efficient given the parameters of this project. The purpose of the interviews was to gather information about Wetland Conservation Easements and their effectiveness as a planning tool that fosters wetland protection. Ten interviews were completed in Eugene and Salem, Oregon between January and April 1998. Each interview 1987, the U.S. Supreme Court made several rulings over the takings issue, but they continue to have significant implications on Federal and state regulations of wetlands on private property (Mitsch and Gosselink, 1993:573; Porter and Salvesen, 1996:27). Chapter 1: INTRODUCTION 11 Carol S. Rosskam Master's Project was tape recorded and transcribed verbatim, and they are included in the Appendix section of this paper (see Appendix A-1 to A-12). To address any bias that could develop, I tried to maintain an objective approach throughout the entire research process. It was particularly important that the information that was reviewed included sources from a wide range of public, private, non-profit, and grass-root community based organizations. There is already a range of opinions within the "community" concerned with wetlands issues. Some believe that public sector agencies perpetrate wetland destruction, while others believe that environmental critics are belittling a process that is at least attempting to create solutions to a difficult situation. This highlights the need to be as impartial an observer as possible. By doing so, the recommendations that are made may be taken more seriously by those interested in, and involved with these issues. Therefore, the interviewees were selected either because of their general involvement with wetlands or specifically due to their work on the conservation easements under consideration in the Veneta area. I attempted to conduct the same number of interviews from each of the following categories: • Federal, State, regional and local government agencies; • Non-profit organizations; • Private businesses, groups or land-owners; • Citizen groups and/or members of the community. According to statistics, this process is considered a quota system. The logic that I used to choose these particular groups was based on the idea that certain group types prevail over the concerns raised, and decisions that are made over wetlands. I intended to conduct three interviews from each category to avoid any bias towards one type of organization over another. It was difficult to arrange three meetings from each group, however I used those Chapter 1: INTRODUCTION 12 Carol S. Rosskam Master's Project parameters to reach my objective as much as possible. In addition, I was unable to contact one of the landowners and could only complete eleven interviews as a result. Out of the eleven interviews, ten took place in person and one was a response by electronic mail (e- mail). Table 1 provides a list of the final categories that I used: Table 1: Final Interview Categories GOVERNMENT NON-PROFIT PRIVATE CITIZEN GROUPS AGENCIES ORGANIZATIONS BUSINESSES OR COMMUNITY AND/OR MEMBERS LANDOWNERS Federal 1. Oregon Country Landowners Eugene Planning 1. Natural Resource Fair 1. Oregon Country Commission Conservation (*1 ) interview Fair * 1 interview Service conducted 2. City of Veneta conducted (*1) interview conducted **is also a landowner ** interviewee also 2. Environmental 2. The Nature Coordinator of Protection Agency Conservancy Friends of (*1) electronic mail of Oregon Eugene/Springfield response (e-mail) * 1 interview Habitat (FRESH), a conducted local non-profit organization State 1. Oregon State Department of Environmental Quality (*1) interview conducted 2. Oregon Division of State Lands (*2) interviews conducted Regional Lane Council of Governments (*1) interview conducted Local City of Veneta (*2) interviews conducted the City Administrator. and the City Engineer) ** is also a landowner Chapter 1: INTRODUCTION 13 Carol S. Rosskam Master's Project Another important consideration is to interview people who hold positions with different levels of responsibility within each grouping. The reason for this is to bring even more breadth of ideas and experiences into the research process. In reality, this was difficult to accomplish although the author did succeed in capturing this to some degree (see Appendix A-1). Three questions were posed to the first interviewee, Joseph Edney of the Oregon State Department of Environmental Quality (DEQ). These questions were: 1. What are the conflicts that the Department of Environmental Quality would have to address if this Conservation Easement was instituted? 2. What are some of the compromises that the Department of Environmental Quality has to address if this Conservation Easement was instituted? 3. How would the Conservation Easement foster a win-win situation between development and wetland conflicts? _It became clear that two additional questions were necessary to ensure that the interviews were comprehensive enough, therefore two more questions were added to the survey. The five revised questions that were posed to the remaining nine interviewees as well as the e-mail respondent are as follows: 1. What are some oft he conflicts that your agency (organization) might have to address to institute a wetland conservation easement on some oft he wetlands on the Oregon Country Fair, City of Veneta or other adjacent properties? 2. What are the areas ofc ompromise that your agency (organization) might have to address to institute a wetland conservation easement on some oft he wetlands on the Oregon Country Fair, City of Veneta, or other adjacent properties? 3. How can a wetland conservation easement, or participating in a Wetland Restoration Program foster a win-win situation addressing the conflict between development and wetland protection? 4. Will wetlandfanctions be served by this easement? 5. Is there another administrative way to solve this problem that might be better? The interview questions were schedule-structured, meaning the wording and sequence was fixed and identical for every respondent. This format was appropriate to the type of information that was solicited from the interviewees. A funnel sequence was used Chapter 1: INTRODUCTION 14 Carol S. Rosskam Master's Project as a framework for the questions posed during the interviews, so that they began with a narrow scope and two closed-ended questions and concluded with more open-ended, general queries. One of the disadvantages of using this particular structure is that it can be difficult to summarize the variety of responses that may result. In addition, the process is limited to a select group of individuals that were involved with some aspect of wetland protection. Perhaps the exclusion of other property owners, certain groups of concerned citizens, Native peoples or scientists will constrain and even bias the evaluation and recommendations to be made. Ideally, it would be best to interview a large number of diverse individuals and groups who are concerned or involved with wetlands, but that is not possible given the limitations surrounding this project. During the research process, it became clear that additional interviews would have provided invaluable information which could have fostered a more in-depth inquiry into this subject matter. 1.4 Organization of the Paper Following Chapter I and its overview of the issues being addressed, Chapter II contextualizes the situation by discussing the stakeholders, and the background and events out of which they evolved. This extends from more site specific information about the proposed Wetland Conservation Easement locations being considered in Veneta to the larger scale issues of wetland functions and values, and their conflicts with development. Conservation Easements are defined and discussed in greater detail. Chapter Ill identifies the critical issues that were discussed by the interviewees. Given the limitations of this study, it is unfeasible to adequately discuss and analyze all of the ideas mentioned during the interviews, despite their relevance to wetland protection and planning. Therefore, the five most prominent themes that evolved out of the interview Chapter 1: INTRODUCTION 15 Carol S. Rosskam Master's Project process are recognized in the third chapter. The themes are identified and then discussed based on the points over which there was general agreement as well as those over which there was dissent. Conclusions in Chapter IV include a recap of key issues. Recommendations are made about Wetland Conservation Easements in Veneta, and their role in wetland protection. Final remarks are made about other situations where diverse interests like landowners, planning and wetlands need to coalesce. Chapter 1: INTRODUCTION 16 Carol S. Rosskam Master's Project 1.5 Summary This evaluation is timely given the attention being given to wetlands in the United States at the local, state and national levels. Locally, efforts are being made to address wetland protection within the planning process including examples such as the West Eugene Wetlands Plan, and the Wetland Conservation Easements under consideration in Veneta. Statewide, the Oregon legislature passed a wetlands planning law in 1989, and in 1997 the State Land Board approved rules proposed by the Division of State Lands for Wetland Mitigation Banking (Gordon, February 19, 1997). Nationally, there is growing concern over wetland protection as policymakers realize that wetland function knows no political boundaries (Mitsch and Gosselink, 1993:541) One of the most important considerations is the need to continuously build on the dialogues that are taking place between those individuals, groups and agencies that are concerned with wetland losses, and to facilitate new discussions between disparate groups that have yet to begin such a process. The purpose of this research inquiry is to provide information that will make the "effectiveness" of Wetland Conservation Easements less ambiguous. By doing so, it will become easier for scientists, policy makers, and community based organizations concerned with the status of wetlands to determine whether tools like Wetland Conservation Easements are effective, and what needs to change if they are not. Overall, this inquiry attempts to provide some answers for one of the most frequently avoided, yet essential phases in any planning process - evaluation and modification of policy decisions. My intention is to conduct a thoughtful, objective and critical study. I will provide new insights to integrate into the evaluation of wetland mitigation tools such as conservation easements, and their fundamental role in wetland protection. It is my belief Chapter 1: INTRODUCTION 17 Carol S. Rosskam Master's Project that all necessary steps must be taken to ensure that the best efforts are made to protect wetlands for the present and in the future. Chapter 1: INTRODUCTION 18 Carol S. Rosskam Master's Project CHAPTER II BACKGROUND 2.1 Description of Study Area The study area is located in Veneta, Oregon, approximately 12 miles west of the City of Eugene. It is part of the Upper Long Tom River Watershed which is in the southwestern section of the Willamette River Basin (see Figures 2,3). For the purposes of this project, the "study area" refers to properties in the Veneta area currently owned by the City of Veneta (COV), the Oregon Country Fair (OCF), and the Larson Family. Portions of all parcels have wetlands on them (see Figures 4,5). The entire study area is in the one hundred year flood plain zone 1 (Bettman 1996). The Upper Long Tom River Watershed covers approximately 100 square miles of forested and agricultural land along the eastern slope of the Oregon Coast Range (Bettman 1996:8). The headwaters of The Long Tom River begin near Horton, Oregon where it flows mostly south for about 12 miles (see Figure 3) (Bettman, 1996:9). Near the town of Noti, the river changes direction and runs east for six miles before it drains into Fern Ridge Lake (see Figure 3). This "lake" is actually a reservoir that is 9,360 surface acres2 in size. It was created in1941 when a dam constructed downstream began operation for flood control and agricultural irrigation purposes3. The river continues flowing from the north end of Fern Ridge Lake and eventually merges with the Willamette River near Monroe, Oregon. The "Upper Long Tom River Watershed" refers to the area drained by the river before it enters Fern Ridge Lake (Bettman, 1996). 1 Based on the Federal Emergency Management Act 100 year flooding projections (Bettman, 1006). 2 According to James Beal, Park Ranger at Fem Ridge Reservoir, the Army Corps of Engineers says Fem Ridge is a "maximum conservation pool" that is 373.5 feet elevation and 9,36) surface acres in size. "Surface acres" is the area to which Fern Ridge is filled each April. 3 The downstream dam that created Fern Ridge Lake was constructed approximately 193S-19401 and began operations in 1941 . Chapter II: BACKGROUND 19 Carol S. Rosskam Master's Project FIGURE 2: LOCATION OF THE UPPER LONG TOM RIVER WATERSHED I '\ ,· I~ •• . - . ·••--,,I"-£",,,,.;::,; I "u f [ r f . ~ :~ • -- ---:•--'NJ r ·? ··. (~ p·•-..r-. -- -· . - ):: . . - . -..~~ , :--Ji~\~~ : Z-5- -~---~-?-,"~-r~~,-~ ,. r~.~!~\ ..\ ·. )~-:~!-~ -~~ -~-~. ~- ~ ~-,-~,~- . i~~t~~ RIV:::;-t~t:;:=; WATERSHE : . "-:-F- ':'~'~ •. ..~.~. -• ' -"' -..._ • I ~ . / ;--.-.._ -~~: :--~~ f ~. ---·-· ·-- _:.::_, ~ ,, ~ I -- I ~ I ,-; I : _.r.f I I ,. I / I I L :-··-,--._ I (? !,... _ / , -~ l------, ' ~ I I / I I o r ' I I 1 , '>' I ~-- ~ I ~ I I 100,,.. Source: Bettman . et .al., 1996. FIGURE 3 Upper Long Tom Watershed Lane County, OR Highway Railroad Fern Ridge Lake Streams Veneta UGB Watershed 0 1 2 3 4 Miles Source : Bettman et.al. , 1996. t-lGUKt: 4 : Studv Area Major Lclnd Owners N Major Road 1000 0 1000 . ' / Secondary Road ~ Railroad '/'j;/_ Streams N Creeks D Tax Lots D Veneta UGB g Lake/Pond Source : Bettman, 1996 . FIGURE 5: Study Area Wetland Features V Streams Creeks National Wetland Inventory 1o ~o~o ~ --~0~~ ~1~00;;0;.....;20~00 Feet I] Local Wetland Dellneatfon ::J Veneta UGB · · Lake/Pond 0 Wetland "fi ngers" Source: Bettman, 1996. A number of native vegetation communities exist throughout the watershed. The upland areas are comprised of mixed evergreen and deciduous forest that are dominated by Douglas Fir, Western Hemlock and Big Leaf Maple. The riparian forests along streams and narrow valleys are mostly Red Alder, Cottonwood, Big Leaf Maple, Oregon White Oak and Willows (Bettman, 1996). Oregon Ash is dominant along the riparian areas owned by the OCF. The lowland areas west of Fern Ridge Lake consist of young wetland forests that are mainly Oregon Ash as well as naturalized hawthorn, pears and apples. Historically4, most of the flat lowlands were wet or dry prairie but were converted to predominantly pasture grasses (Bettman, 1996; Liberty, 1998). The most prominent community in the study area is the mature5 gallery6 forest along the river, and the extensive ash woodlands that surround patches of wet prairie and grazed pasture land (Bettman, 1996:20). The Upper Long Tom River Watershed is relatively undeveloped compared to the more urbanized Eugene/Springfield area (Bettman, 1996). The dominant land uses in the watershed are extensive forestry and more limited agriculture, which is primarily pasture for cattle and some sheep as well as Christmas tree farms. Based on population projections for this area, residential and commercial development will increase in the towns of Veneta, Elmira and Noti. As a result, additional land will be required to meet development, recreation and other needs (Bettman, 1996). There are four major landowners in the study area (see Figure 4). Those pertinent to this case study include the COV, The Larson Family, and the OCF. All of the major landowners have designated wetlands on their properties (see Figure 5) . 4 In this context, 'historically' refers to pre-European settlement, prior to the early part of the 1g ll' century. 5 A ·mature" gallery forest is approximately 150 years old. 6 "gallery" refers to the multiple layers of strata from the ground up. A gallery forest has positive effects on habitat, temperature control, flood control and water chemistry. Chapter II: BACKGROUND 24 Carol S. Rosskam Master's Project 2.2 The Issues The Upper Long Tom River is one of three drainages (Long Tom, Coyote Creek, and Amazon Creek) emptying into Fem Ridge Lake, but is the only one with a significant flow during the summer. The preservation of water quality in Fem Ridge is closely connected with land use practices throughout the Upper Long Tom Watershed. Point source contamination, such as sewage effluent, is one of the factors effecting water in the lake. (Bettman, 1996: 1,2). Some of the other influences include urban runoff, sedimentation from upland clear-cuts, and herbicides in addition to other nutrients used for agricultural purposes (Bettman, 1996). City of Veneta Since 1976, the GOV discharges effluent from its wastewater treatment facility into the Long Tom River during the winter period. During winter months, the river's seasonal flow is substantial enough to meet Oregon State Department of Environmental Quality (DEQ) standards for effluent dilution and disposal. The effluent is discharged into the river according to a permit issued under the National Pollutant Discharge Elimination System (NPDES). NPDES permits are part of the legislative program established to • implement The Clean Water Act. A NPDES permit must be obtained when any activity, including construction or facility operation, may result in any discharge into navigable waters (Jain et.al. , 1993). It specifies effluent limitations such as maximum chloroform • levels and the average monthly discharge that can be released into a waterway . During the summer, effluent was retained in a storage lagoon until 1982 when the • GOV started using a spray irrigation system. This operational change increased the - facility's discharge capacity by extending the storage lagoon from summer only to year round use (Bettman, 1996). - - Chapter 11 : BACKGROUND 25 Carol S. Rosskam Master's Project - Between May 31 and October 3f, Veneta's effluent is pumped through a subsurface pipe from its wastewater treatment facility to a 34-acre lot of pasture land north of Highway 126 that is owned by the OCF (see Figure 5) (Bettman, 1996:33; Wellman, 1998). Of the 34 acres characterizing the parcel on which effluent is sprayed, approximately 27 acres are used for irrigation. The irrigated section is vegetated with mixed non-native grasses and has been regularly grazed for more than 40 years (Bettman, 1996:33). Veneta's existing wastewater treatment system was built in 1966. However, it is outdated and does not operate within Oregon State DEQ discharge standards. Consequently, the DEQ issued a Notice of Noncompliance to the COV in January 1996 stating it was unlikely the COV would be able to meet these standards in the future without substantial improvements to its wastewater treatment facilities (Wellman, 1998; see Appendix 8). In October 1996, the COV signed a Mutual Agreement and Order (MAO) with the DEQ. This agreement established a schedule to improve Veneta's wastewater system, thereby forestalling DEQ enforcement actions. If the repairs are not completed according to the timelines identified in the MAO, the DEQ can either fine the COV $10,000 per day, or they can issue bonds for the city and force it to do the work (Wellman, 1998). To facilitate project support, the COV is using written information and public meetings to educate residents about the issues (see Appendix 8). Improvements to Veneta's sewage system are expected to cost $7.23 million (Wellman, 1998). Of the total estimated costs, $2.65 million (Wellman, 1998) will be grants from the Federal Rural Development Agency8, Oregon Economic Development Department, Community Development Block Grants, and the State Revolving Fund which is administered by the DEQ (Makinson, 1998; Wellman, 1998). The remainder of the project will be funded by long term, 40 year loans with low interest rates that are 1 currentlv the CMav to October) neriod for discharae into the river is under review and max chaoae Chapter II : BACKGROUND 26 Carol S. Rosskam Master's Project below market levels. There are only 865 ratepayers in Veneta, therefore sewage connection costs will be increased from $20 to nearly $50 per connection to generate enough funds to pay off the loans (Wellman, 1998) (see Appendix 8). In addition to Veneta's existing sewage system problems, its population is expected to nearly double by the year 2020 to approximately 5,000 residents (Wellman, 1998). While Veneta's Urban Growth Boundary is large enough to provide for its anticipated growth (Elliott, 1998; Wellman, 1998), to accommodate its sewage needs the COV will require about 35 acres9 of land for treated effluent spraying 10 (Wellman, 1998). Currently, it has access to 32 acres and requires an additional 12 acres to meet its needs. Another 12 acres that are available to the COV are designated as wetlands. However, Oregon Department of State Lands regulations state that effluent cannot be applied to those lands that are designated as wetlands (Wellman, 1998), and the COV is looking for solutions to resolve this situation. One of the proposals being considered by Veneta is to plant an urban forest of approximately 1,700 hybrid poplar trees that could be used for effluent applications (Wellman, 1998)11 . The growing season for poplar trees coincides with the summer period during which effluent irrigation is conducted. In addition, Poplars are well adapted to the high levels of ground water that characterize the Veneta area during winter months. They have a rapid growth rate 12 which is conducive to periodic cutting, chipping and replanting. 8 The Federal Rural Development Agency was previously known as The Farm and Home Administration. 9 As of this writing, the amount of land area required for effluent spray is still under negotiation and has yet to be defined. Currently, 35 acres is considered to be sufficient but this could range from 20 to 45 acres; it is more likely that 20 acres will be needed in the final analysis. 10 According to conservative estimates of documented growth rates for poplar trees on McBee soils in the Willamette Valley, 44 acres of poplars, planted at 1200 trees/acres, are necessary to dispose of the volume of effluent projected for Veneta's population growth by the year 2017. If pasture lands were used instead, 52 acres of land would be required to meet summer effluent spray requirements (Bettman, 1996:38). 11 The hybrid poplar forest is an approved system by the Oregon State DEQ (Scott, 1998). 12 Results from a recent pilot study conducted by the City of Woodburn, Oregon testing effluent disposal by spraying to hybrid poplars indicates the poplars grew 18 feet after only 14 months in the ground; these trees were grown from either bare 1 foot trees or 5 foot clippings (Bettman, 1996:38). Chapter II: BACKGROUND 27 Carol S. Rosskam Master's Project Currently, research is being conducted by a number of major paper companies and the Oregon Department of Agriculture into poplars' potential commercial value as a wood fiber crop. Preliminary results indicate that the poplar trees could become a revenue source for Veneta 13 when the chipped wood is sold for use as particle board or ' presswood, landscaping mulch, or on hiking and walking trails. Depending on market demand, this may help offset some of the operating costs associated with the disposal site. Another issue relates to land ownership relative to use of the land. The COV owns land that is used for camping each year by the Oregon Country Fair during the event. In exchange, the OCF allows the COV to spray effluent on some of its property during the summer months. This is necessary because the COV does not have access to enough land to meet its effluent spray needs. At the same time, the OCF cannot provide camping on land that is used for spray irrigation. To resolve this situation, the COV and the OCF are considering a land exchange between these two properties. The presence of wetlands on the properties raises mitigation issues that must be addressed. The land exchange proposal has been presented in a number of ways including an acre for acre exchange, and an exchange plus cash to address the different property sizes (Wellman, 1998). Oregon Country Fair The Oregon Country Fair is a non profit Oregon corporation that hosts an annual three day arts, crafts, education, and entertainment fair west of Veneta, Oregon. Like any seasonal fair, the OCF changes every year. The fair has been held on its current site since 1970 (see Figures 6,7). Although the fair is a three day event held in mid-July, preparations begin twelve months in advance and site maintenance continues throughout the entire year. 13 Poplars can be harvested after Z:9 xear rotations and mav Yield between $450-$2 700/acre after 8 vears rvatiun va lues uf the Property Note T/11• hr,yp(/ 1111111hf'rs ''""'rl,•tl 11• /},, , l, •r / 11{ th,• 1•11.,,•m~,i/ 1·11rr~spo11d 11'itl, tl1P in perpetuity ; And I• I .~11hlw,ul1t1>,t 1111,uhf'r·,-; 111 llw , ·11r11nw11/nr"\· tho/ fiJl/ou •s WHERE AS. !:rant.P.e is a puhhcly supported, I.ax -exempt nonprolil or~11niw - ti11n And a qualiliPd orJ!an1zatio11 11 m ler Sections 50Jld3l and 170(h 1, respf'l'ltwl,v. of the Internal Ht>vt>nue Code of HIHo, as amended, and the regu latiwu• promulgated thereunder I the " l11t erna l Heven ue Code" !, whusti µnrmary purp11s1• Dl<:ED OF CONSF.RVATION EASEMENT 1 1 . ifl lt; .~. . the preser.vatioo, 1>rnwction. or enhancement...QfJ.i!.ml.inil1;1 tli!.lY.rnJ. THIS (;f{ANT I >EEi l OF < 'ONSERVATION EASEMENT is m11dt> this sccrnc historical. agrirn)tural. furestcd. and/or 01>e11 s pace conecific state stalJ.!l!Lry ("Grnnlnrs"1 , in frH"ur nf ___ _ ____ _______________ l;\uthurit,y I , Grantors herehy volunlanly grant. and convt>y to <:rnnt,..,.. r1 a nonprofit _ liitaLe uf jucorpl)lllllvuL corpunll ion lqual11ied to do bw1111ess in rnnservation eaRemenl in perpetuity over the Property of the nature and d1ar11der Isl.ate whi;re JmW.ia:l.x..j_!i Jycl).t~!l ii, hnving an A. , 11 , I "Grantee" 1. ~, 1 Purpose. It is the purpose of th is Easement In 11ssun• that t he Prnpf'rt.v will he retainer! forp ver I preduniinanlly I in its le.i: . natural.M!illi.c...hrnwrm WITNESSF:TH : ~irn)turaL forested, and/ur 01.1eu s1>1:1ce I condit ion and tu prevent any use of the WHEHl<:AS , i :, (:rnn lnrs nr,:, th,• sol e ownns in fee simple of certa in real Property that wilt Is ignificantly l impair ur interfere with th conser-v at i,,n v:-tlues property 1n _ _____ __ ( 'ounty, -1.:!wt:L. more partirulArly of the Property. Granturs intend that this EasE'Jnent will confi11e tlw use of I he drscnlwd i11 Exhil11l A al ladwd lwn•l.11 and im·111·1wrntPd hy this reference I the Property to irnch activities, including. without limitation . those m volving l.c,li!u "Property"), ii ncl • ' fw:mio~.raru:hli111:, timber prcliv1:ly, "rnnsnvalion va lue." ) 2. Righl.8 or Grantee. 'lh accomplish the purpose of this Easc111e11t tlw of grea t impnrllHH 'f' '" (:ranlors. Llw pt>uplt• of l\:().Y.Jll.Y..locaie. or re~ool and the following rights are crmvt>yed t.o Grantee by thi s l<~ase ment: people of the Sta l(• of __ _ ____ _____ : and ~ la) To preserve and protect the conservation values of the P roperty; WHEREAS. in pRrtirular. ___ Jde~rik~pecific conservation values I (b) To enter upon the Property al reasonable t1111es in order lo 1nnnitnr and • I compliance with and othi>rwisP t>11force the terms of this Easement i11 :u • .,r. dAnce with Rection 6; provided that, except in cases wherP Grantee deter- WHEREAS. tlw Hpecifk eonst>rvRtion vAh1Ps of tlw Property ore further doc- mines that immediate entry is required to prevent, terminalt' . or rnitil{ate a umenll:'d in an i11vi,11tory 111' n•IPvn11t f1•11t 11res of tht> Properly, rlatecl viol Al ion· oft his Easemt>nl, such entry sh All he upon priol' r!'aAnrrnhli- noti1·1· ------- - . _J_ ouJjl\:_i !t Lh.e...vffi~ ~ .hereJ& WI to Orant.orR, and Grantee shall not in any case unreasonahly mlt>rft>re with .t:.xhil.11t UI anti inrnrpurnlt •fl hy this rPferem·e l"Aaseline Do ·umentatiun" ), Grantors' use and quiet enjoymt>nt of the Property; and \"hieh c1,ns ist.s uf rl-'porls. maps , photowaphs , anti ot her documentation that the !cl Th prevent any activity on or use of the Property that is inl'onsistent parties ab.rree proviclt> , <'11llt•<·t1 vt> l_v, Rn At·t·urnle represe111ali<,n uf the Property at with the purpose of thiR Easenwnt and to require the restoration of surh areAA tlw lime uf this gninl a11nd,·d lo tiCrve a:; c111 ubJective, though or features of the Property that may be damaged by any incons1stenl. activity nunt>xch1s1v<-, informati,,11 l,as1•1!11" for 1110111tun111{ 1·ornplia11ct> with the terms of this 15ra11t, or u!'di t>s set forth in section fi . 1 13 RIIU 7 ' < :l. Prohibited Uses. Any Rrtavilv on or use ofLl1t> l'r<>JWr1.y inconsislt>nl 1,1,i lh llw WH ~: REAS , :ranlori< 1nt1•nrl I hnt the r,mqprvnl ion va lues of tlw Property be purpw,e of thiR Easement is. prohibited . Wit hont limiting the generality of the fort> • preiwrvt>d nnrl mainlmnecl hy p.-nn i111 ng onl ,v thosP land 11s1•,; 011 llw Property 1{11i111{. t.lw followinl{ a('tivities and uses are expressly prohih1tecl : ' 14 thnl clo nut si1,,rn 1fka11tly impair or 111tprfi.•rc with llw111 , including, with1111I limita - tion , those la11d u::i1·s n• la1i11g lo -1.L~Ull'...Jll.Jll;hi.ll~ .Qf 111..llb.!u _productwnl I lnAert l<~xpress Restnclion~ I U1 ex isting 11 1 I h~• t irne of I tw; i.trn111 . ntl ul.lwrs Source: Barrett and Nagle, 1996: 12-20. APPENDIX E MODEL CONSERVATION EASEMENT to engage in . a ll uses of the Property that are not ex pressly prohibited herei n and or environmenta l values. Without limiting Grantors' liability therefor. Grantee, in ai·e not inconsistent with the purpose of this Ea ement. [Without limiting the its sole discretion , may apply any damage recovered to the cost of undertaking genera lity of the foregoing. and subject to th terms of paragraph 3, the following any corrective action on the Property. rights are expressly reserved : I 16 I 6.4 Emergency Enforcement. If Grantee, in its sole discretion, determines I Insert Ex press Reservations, if desired I ~ that ci rcum lances r quire immediate action to prevent or mitigate s ignificant 5. Notice and Approval. damage to the con ervation values of the Property, Grantee may pursue it · reme- dies under thi s ction 6 without prior notice to Grantors or without waiting for 5.1 Notice of Intention to Undertake Certain Permitted Actions. The the period provided for cure to expire. purpose of r quiring Granlor. to noli(y Grantee p,ior to undertaking certain per- mitted activities, as provided in paragraphs _ __, is to afford Grantee an ade- 6.5 Scope of Relief. Grantee·s right..q under thi s ction 6 apply equally in quate opportunity to monitor the activities in question to ensure that they are the vent of either actual or threatened violations of the terms of this Easement. designed and ca rried out in a manner that is not inconsistent with the purpose of Grantors agree that Grantee' remedies at law fo r any violat ion of the terms of this Easement. Whenever nolic is required Grantors shall notify Grantee in this Easement are inadequate and that Grantee shall be entitled to the injunctive writing nol less than I e.Jl., thirty (30)/sixty (60)1 days prior to the date Gran tors relief described in paragraph 6.2, both prohibitive and mandatory, in addition to in tend to undertake the activity in question . The notice shall describe the nature such other relief to wh, h Grantee may be entitled , including specific performance cope, design, lo 'ation. tim table. and any other material aspect of the proposed of the terms of thi Easement, without the necessity of proving either a 'lual dam- activity in su ffi cient detail to permit Grantee to make an informed judgment as ages or the inadequacy of otherwise avai lable legal remedies . Grantee's remedies to its consistency with the purpose of this Eas ment. described in th is section 6 sha ll be cumulative and sha ll be in addition to a ll reme- dies now or hereafter existing at law or in equity. 19 1 5.2 Grantee's ApprovaJ. Where Gran ee's approval is required, as set forth in paragraphs ___ , Grantee shall grant or withhold its approval in writing 6.6 Costs of Enforcement. All reasonable costs incurred by Grantee in wi thin le~. . thirty (30 )/sixty <60J I days of receipt of Grantors' written request enforcing the terms of this Easement aga inst Grantors, including, without limi - therefor. Grantee's approval may be withheld on ly upon a reasonable determina- tation, costs and expenses of suit and reasonable attorney · fees, and any costs of tion by Grantee that the action as proposed wou ld be inconsistent with the pur- restorati on necess itat d by Grantors' violation of the t rms of this Easement shall pose of this Eas ment. I 18 be borne by Gran tors; provided, however, that if Gran tors ultimately prevail in a judicial en for ement action each party sha ll bear its own costs. 20 6. Grantee's Remedies. 6.7 F0t·b arance. Forbearance by Grantee to exercise its rights under this 6.1 Notice of Violation; Corrective Action. lf Grantee determines that a Easement in the event of any breach of any term of this Easement by Grantors violation of the terms of thi s Easement has occurred or is threatened, Grantee shall not be deemed or construed to be a waiver by Gra ntee of such term or of a ny shall give written noti ce to Grantors of such violation and demand corrective subsequent breach of the same or any other term of this Ea ement or of any of action suflicienl to cu re the violation and, where the violation involves injury to Grantee's rights under this Easement. No delay or omission by Grantee in the the Property resulting from any use or activity inconsistent with the purpose of exercise of any right or remedy upon any breach by Grantors shall impair such this Easement, to restore the portion of the Property so injured to its prior condi- right or remedy or be construed as a waiver. tion in accordance with a plan a pproved by Grantee. 6.8 Waiver of Certain Defenses. Grantors hereby waive any defense of 6.2 Injunctive Relief. If Gran tors fa il to cure the violation within le,~. • thirty laches, estoppel, or prescription. 211 Gilll1_ days afler receipt of notice thereof from Grantee. or under circumstances where the violation cannot reasonably be cured within a lthjrty (30)1 day peri- 6.9 Acts Beyond Grantors' Control. Nothing contained in this Easement od, fail to begi n curing such violation wii.hin th I thjrty (30/1 day period, or fail shall be construed to entitle Grantee to bnng any action against C rantors for any to continu diligently to cure such violation until finally cured, Grantee may bring injury to or change in the Property resulting from causes beyond Grantors' con- an action at law or in equity in a court of competent jurisdiction to enforce the trol, including, without limitation, fire, flood, storm, and ea rth movement, or from terms of this Easement, to enjoin the violation , pa.rte as necessary, by tempo- any prudent action ta ken by Granto rs under emergency conditi ons to prevent, PX rary or permanent injunction , and to require the restoration of the Property to the abate, or mitigate sign ifi cant injury to the Property resulting from such condition that i>xisted prior to any such injury. ca us s . f22l 6.3 Damages. Grantee shall be enti tled to recover damages for violation of 7. Access. No right of access by the general public to any portion of the 3 the terms of this Easement or injury to any conservati on va lues protected by this Property is conveyed by this Easement. 12 ! Easement, including , without limitation, damal{PS for the loss of scenic, aesthetic, APPENDIX E MODEL CONSERVATION EASEMENT 8. Costs, Liabilities, Taxes, and Environmental Compliance. requirrment ns hazardous , toxic , polluting, or otherwise contami nating tu the ai r, 8.1 Costs, Legal Requirements, and Liabilities. Grantors retain all water, or oil. or in any wa harmful or threatening lo human h a llh or the envi - responsibilities and shall bear all costs and lia ilities of any kind related lo the ronment, Grantors ab'Tee lo lake a ll s teps necessary to assure its onlainrnent and ownership. operation. upkeep. and maintenance of the Property, including the remediation , including any leanup that may be required. unless the releas was mainl nance of adequate liability insurance coverage. Grantors remain solely caused by Gr· ntee, in which case Grantee shall be responsible therefor. responsible for obtaining any app li ca ble goven mental permits and approva ls for 8.1) Control. Nothi ng in this Easement sha ll be construed as giving rise, in any cons truction or other activity or use permitted by this Easement. a nd all such the absence of a judicial decre . to any right or ability in Grantee to exercise phys- construction or other aclivil_y or use sha ll l.,e undertaken in accordance with all ical or managerial control over the day-lo-day operations of the Prop rty, or any applicable federa l, stale, a nd local laws, regulations. and requirements. Granlors of Granton,' activiti s on th Property, or otherwise lo become an operator with shall keep the Property free of a ny liens arising out of any work performed for, res pect tu the Property within the mea nin g of The Comprehens ive material s furni hed to. or ol ligationis incurred by Granton, . 24 Environmental Responfle , 'ompensation, and Liabi lity Act of 1980, as amended 8.2 Taxes. Grantors shall pay before delinquenry all luxes . assl·:-s111e11ls. fees . 1"CE llCLA"1. and icorresgondioll stak_§J,lli.Y.l&L. 261 and charges of whatever de cri ption levied on or assessed against the Prop •rty by 8.6 Hold Harmless. Grantor hereby release and agr e lo hold harmless, com petent authority (collectively "taxes''), including any truces imposed upon, or indemnify, a nd defend GrantPe and itR members, directors, offi cers, employees, incurred as a refmlt of. this Ea~Pmenl. and shall furnish Grantee with satisfacto- a~nts, and contractors and the h irs . per onal representatives. successors, and ry evidence of payment upon re11ue,;t. 12~ assigns of each of them (collectively "Indemnified Parties"/ from and against any 8.:3 Representations and Warranties. Grantors represent and warrant and all li abi litie , penall ies, fines, charges. costs, losses. damagei:; , expenses. caus s that, afler reasonable investiirntion and lo the best of their knowledge: of action , claims, demandR, orderfl. judgments, or administrativ actions, includ - ing, without limitation. reasonable attorneys' fees, arising from or in any way ( 11 l No substance defined, listed. or otherwise classified pursuant to any connected with : ( l) injury to or th death of any per on, or phy ical damage to any federal , stale, or local law, regul ation. or requirement as hazardous. toxic, pol - property. resulting from any act. omission, condition , or other matter related to or luting, or otherwi"e contaminating to the air, water, or soil, or in any way occurring on or about the Property, regard less of cause. unless due solely to the harmful or threatening lo human health or the environment exi ls or has negligence of any of the lndemnifiPd Parties; 12) the violation or alleged violation been released. generated, treated , stored , used. disposed of. deposited, aban - of, or other failure lo comply with , any slate, federal, or local law, regulation , or doned , or transported in , on , from , or acros the Properly; requirement, including, without limitation, CERCLA and J.l;orrespondin~ staLe (b) There are not now any underground storage tanks located on the staLutel , by any person other than any of the Indemnified Parties, in any way Properly. whether presenll_v in service or closed, abandoned, or decommis- affecting, invol vi ng, or relating to the Property: 13) the presence or release in . on, sioned, and no underirround storage tank have been removed from the from , or about the Property, al any time, of any substance now ur hcrealler Prop rty in a manner not in compliance with applicable federal , slate, and d fined, listed, or otherwise classified pursuant to any federal, state, or local law, local laws. regul::itionR. and requirements; regulation, or requirement as hazardous, toxic, polluting, or otherwise contami- lc) Grantors and the Property are in compli ance with all federal, state, nating to the air, water. or soil. or in any way harmful or threatening to human and local laws, regulations. a nd requiremPnt" app licable to the Property and health or the environment, unless ca used solely by any of the Jndemnrfi d its use: Parties; and (4 1 the obligations. covenants, representat ions, and warran ies of Id) There is no pending or threatened litigation in any way affecting. paragraphs 8.1 through 8.5. '27 involving. or relating lo the Property : and (el No civil or criminal proceedings or in vestigation have been instigated 9. Extinguishment and Condemnation. al any time or are now pending, and no notices, claims, demands, or orders 9.1 Extinguishment. If ircumstances arise in the future that render the have been received. arising out of a ny violation or a lleged violation of, or fail - purpose of lhiis Easement imposis ible to accomplish. this Easement ca n only be ure to comply with, a ny fede ral. s tate, or local law. regulation, or requirement terminated or extinguished, whether in whole or in part. hy judicial proceedings applicable to the Property or its use, nor do there exist any facts or circum- in a court of competenl jurisdiclion . The amount of the proceeds to which Gra ntee stances that Grantors might r asonably expect to form the basi for any such shall be entitled, after the sati faction of prior claims. from any a le, exchange, or proceedings, inv stigations. notices, claims. demands, or orders. involuntary conversion of all or ny portion of the Properly subsequent to such 8.4 Remediation. If. al any time. there occurs, or has occurred, a release in , t nnination or exli nguishment. sha ll be the stipulated fa ir ma rket value of the on , or about the Property of an substance now or hereafter defined , listed , or oth- • asement, or proportionate part thereof, as determined in a corda nce with parn - erwise classified pursuant to any federal , s tate. or local law, regulation, or graph 9.2. 2!1 1 ◄ APPENDIX E ~1UlJtl l lJN!-i t:.R\,\ I IUN t·A:,i M l N I a. ill~ ll lNll. l'~L~I ~VAi ll )N I A~I ~II NI l ' "it • MODEL CONSERVATION EASEMENT 9.2 Valuation. This Easement constitutes a real property interest immedi - 12. Estoppel Certificates. Upon request by Grantors , Grantee shall within ately vested m Grantee, which , for the purposes of paragraph 9.1, the parties stip- \e .i;::., twenty (20)1 days execute a nd delive r to Grantors, or to any pa rty desig- ul a te to have a fair market value determined by multiplying ( l) the fair market nated by Grantors, any document, including an estoppel certificate, which certi - val ue of the Property unencumbered by the Easement (minus any increase in fi es, to the best of Grantee's knowledge, Granton,' compli ance with any obligation va lue after the date of this grant attributable to improvements) by (2) I.JIL.y__, which of Gra ntors conta ined in this Easement or othe rwise evidences the s ta tus of this 1s I the ratio of the va lue of the Easement at the time of this grant to th • value of Easemen t. Such ·certification sha ll be limited to the conditi on of the Property as the Properly, without deduction for the value of the Easement, at the time of thu:1 of Grantee's most recent inspection. If Grantors request more cun-ent documen- gra nt. !The values at the time of this grant lar r- sha ll be l those va lues used tation , Grantee shall conduct an inspection , at. Gran tors' expense, within ~ t.o cakul a te the ded uction for federal income tax purposes allowable by reason of thirty (30)\ days of receipt of ,rantors' written request therefor. ,34 , this grant, pursuant to Section l 70(h I of the Inte rnal Revenue 'ode. For the pur- 13. Notices. Any notice, demand, request , consent, a pprova l, or communica - poses of this paragraph, the ratio of the value of the Easement to the va lue of the tion that eithe r party desires or is required tu give to the other shall be in writ- Property unencumbered by the Easement shall remain onstunt.! 2w\ ing and ei_ther served persona lly or sent hy firs t class ma il , postage prepaid , 9.3 ondemnation. If a ll or any part of the Property is taken by exercise of addressed as fo llows: the power of eminent domain or acquired by purchase in lieu of condemnation, To Grant.ors : ______________ whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantors and Grantee shall act jointly to recover the full value of the interests in the Property subject to the taking or i, lieu pur- hase a nd a ll direct or incidenta l damages resulting therefrom. All ex pens s rea- To Grantee: _ _____________ sonably incurred by Grantors and Grantee in connection with the taking or in lieu purchase shall be pa id out of the amount recovered. Grantee's sha re of the bal- ance of the amount recovered s ha ll be determined by multiplying that balance by the ratio set forth in paragra ph 9.2. li!O or to such other address as either party from time to time shall designate by 9.4 Application of Proceeds. Grantee shall use any proceeds r ceived written noti ce to the other. 35 under the circumstance described in this section 9 m a man ner cons istent with 14 . Recordation. Grantee shall record this instrument in timely fa shion in its conservation purposes , which are exemplified by th is grant. , 311 the official records of ________ County, !sta te! , and may re-record it 10. Assignment. This Ea ement is transferable, but Grantee may assign its at any time as may he required to preserve its rights in this Easement. as rights and obligations under this Easement only to an organization tha t is a qua l- 15. General Provisions. ified organiza tion a t the time of transfer under Section l70(h l of the Interna l 15.1 Controlling Law. The inter pretation and performance of this Easement Rev nue Code (or any s uccessor provision then applicablei, and authonzetion of Rights and Obligations. A pa rty's rights and obliga- tions und er this Easement terminate upon t ra nsfer of the pa rty's interest in the Easement or Property, except th at li a bility for acts or omissions occurring prior to transfer sh a ll survive tran·s fer. 15.9 Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a pa rt of this instrument and sha ll have no effect upon construction or interpreta tion . 15.10 Counterparts. The parties may execute thi s instrument in two or more counterpa rts, which sha ll, in the aggregate, be signed by both pa rties; each counterpart shall be deemed an origina l instrument as aga inst any pa rty who has signed it. In the event of any di spa rity between the counterparts produced, the recorded counterpart shall be controlling. !37 1 TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. ! :is i IN WITNESS WHEREOF Gran tors and Gran tee have ::;et their hands on the day and year first above written. Grantors Grantee by-------------- its ----~Io _fli_r_c_ia_l_c_a~p_a_c_i~ty~I ____ IAcknowlcdgments l