Conservation of Biological Diversity in the Great Lakes Basin Ecosystem:  Issues and Opportunities

Appendix 3
Types of Conservation Tools

To successfully conserve the biological diversity of the Great Lakes basin, a system of tools needs to be identified that address the needs and desires of individuals, groups, corporations and government organizations. These tools will need to vary in terms of their strength, the duration of protection provided, the speed with which they can be used and their cost. The tools need to be created such that they can be used independently, in sequence or in combination.

This section presents the most common conservation tools that are appropriate for preserving biological diversity in the Great Lakes basin. They are: education, registry of key biological elements, management agreements and acquisition. This is not a comprehensive listing, but a starting point for developing an effective and complete system of tools.

Education can be divided into three subcategories: the provision of information, classroom education carried out in a structured setting and landowner contact. It is likely that more biological diversity has been eliminated through ignorance than by design. Education provides a means to stop accidental or incidental elimination of important biological features.

The provision of information is the general dissemination of material that identifies, explains or guides the protection of biological diversity in the basin. Very little has been done to describe the unique biological character of the ecosystem. Most publications, fact sheets, videos and radio spots that concern themselves with the Great Lakes basin relate to the environmental damage that has occurred over the last few centuries. Very few of these focus on the unique natural character of the basin that remains.

A tremendous opportunity exists to increase awareness of, and appreciation for, the biodiversity values of the Great Lakes. Such information should explain the concept of biological diversity, why it should be conserved and identify the key biodiversity elements of the Great Lakes. It should remain general enough to reach a wide audience. This information could be conveyed through publications, radio, television and interactive software.

Classroom education is more formal and more focused than the provision of general information. For the purposes of biodiversity protection, this tool is most useful when directed at increasing appreciation for the unique resources in a specific area. That is, classroom programs should be used to develop an understanding of local biodiversity features that students can see around them. This technique is being used in several locations in the basin to advance the remediation of contaminated areas. For example, in Green Bay, Wisconsin, and along the St. Louis River mouth in Wisconsin and Minnesota, elementary school students are being educated in the principals of stream ecology and using that classroom knowledge to become aware of the value of the resource through supervised field work. By reaching the areas' children and instilling a sense of the value of those resources, the chances for better stewardship are increased.

The most direct form of biodiversity protection education is the notification of individual landowners of the unique biological elements that occur on their property. A notification program simply provides information to landowners and does not ask them to do anything. A successful notification program has several distinctive features. First, it is based on a comprehensive and scientific inventory. It must be clear that the interest in a person's land is based on the biology of the region. Second, the initial contact must be as non-threatening and non-bureaucratic as possible. For this reason, many successful notification programs are carried out by private organizations, avoiding the threat of governmental control. The contact must be made by an individual whose primary skills are listening and effective communication--particularly the effective representation of scientific information. The contact should be face-to-face, and the landowner should be shown the biological element of interest and have its value/uniqueness explained. To the extent possible, the intentions of the landowner should be explored as they relate to the protection of the resource.

Education forms the basis for the conservation of biological diversity. People will only protect what they care about and will only care about what they know. The targeted provision of information can be a very strong tool, protecting ecological resources by empowering people to make correct choices. If done correctly, and in a comprehensive fashion, the protection afforded is very long term. The drawback to relying solely on education is that this is a long-term process, with progress measured in essentially generational time frames. The cost varies, according to the specific technique adopted.

Registry of key biological elements is the systematic documentation of a list of key elements by the landowners on whose property they reside. A property owner agrees to list his/her property in an inventory of key biological elements. Generally, such agreements are non-binding, and the primary incentive is the recognition of the landowner's protection of the resource in question. In a sense, a natural areas registry is very much like the scholastic "honor role" or "dean's list."

The key feature is the type of recognition that the owner receives. Whatever form it ultimately takes, the recognition should emphasize the civic-mindedness and generosity of the owner. Successful programs have used plaques, certificates and official letters. In designing these programs, this cannot be overlooked or under-budgeted.

Information on the resource should be presented, as well as advice on how it can be maintained and offers of assistance for increased protection. Generally, it makes sense to use the registry as a way to keep in touch with the landowner via informal contacts, newsletters or periodic communications.
Because registry relies on the voluntary cooperation of landowners, such programs must remain sensitive to their needs and concerns. Typical concerns might include a fear that participation will lead to government regulation or condemnation of the property. A similar fear is that property values might decrease or that undue publicity might result.

One component of a registry program can be a binding agreement for a landowner to provide a "right of first refusal" to a conservation organization when the property is to be sold. Generally for a small fee, known as a "consideration," the landholder agrees to allow a government or private organization the right to match a legitimate offer for the property, if one is tendered, and obliges the landowner to approach that organization first so that it can make an offer when the property is placed on the open market.

The strength and duration of protection provided by registry programs is little more than that afforded by notification. The value added is that the relationship with the individual or organization holding title to the property is cultivated and strengthened. As with educational programs, such activities take time to work and are probably not the best single tool to be used if a threat to the resource needs to be addressed quickly. However, for a minimal cost, these programs can increase the protection of biodiversity resources.

Management Agreements are arrangements between two or more parties to carry out specific conservation activities or to prohibit other actions. These are used when the landowner wants to maintain title to the property. Typically, they are employed when a resource is highly valuable, subject to a serious threat and/or the conservation actions under consideration will require the commitment of financial or other resources. Although they can be informal, management agreements usually are legally binding.

The conservation activities could include actions such as the installation of filter strips around crop land, prescribed burning of prairies, removal of exotic species and the installation of fencing to protect critical elements or processes. Activities that might be restricted include the cutting of a timber stand or woodlot, the draining of a wetland or construction of new buildings.

Often these arrangements take the form of a contract between the landowner and a conservation partner. For example, the Conservation Reserve Program operated by the U.S. Department of Agriculture can be viewed as a management agreement that is enforced by contract. In this program, a farmer takes land out of crop production and places it into a conservation practice, such as the growing of a cover crop, to reduce soil erosion. In return, the government contracts with the farmer to pay a certain price for the loss of income.

Another example involves The Nature Conservancy and the Ford Motor Company. Ford was deciding whether to sell some its property bordering one of the Great Lakes. The company became aware that a bald eagle nest was located within the tract. Investigation by The Nature Conservancy's Michigan Field Office, in conjunction with the U.S. Fish and Wildlife Service and the Michigan Department of Natural Resources, indicated that the nest was active, and in fact contained eggs during the time the company was contemplating its sale. The company funded an investigation that identified the amount of protection that the eagles would require, and rather than sell the land, entered into a management agreement to protect the eagles and their nest.

The major provisions of that agreement include: the property is designated as the "Ford Eagle Preserve;" the agreement is automatically renewable every year; The Nature Conservancy pays Ford an annual "consideration" of $1; the Conservancy supervise scientific, research and educational activities on the property; and Ford pays all taxes on the land. The agreement terminates if: there are no viable nests for five consecutive years; Ford leases, sells or otherwise disposes of the property; or either party gives 60 days notice.

Another alternative type of management agreement is the use of a lease. In a lease, the landowner grants certain rights to the leasee in exchange for rent payments. For example, a stand of rare plants was discovered on the right of way for a major rail line. To protect that occurrence, a lease was designed that is renewable annually, allows a conservation organization to install fences to protect the stand, prohibits railroad employees from removing the plants and allows the conservation organization to transplant the stand if that becomes necessary. The lease allows the railroad to keep title to the property. For a small annual fee, the conservation group can protect a critical element of biological diversity.

If properly constructed, management agreements can be a strong protection tool. In fact, they are the principle tool used by Great Britain's Nature Conservancy. Because these agreements are very specific, and all of the rights to a particular property are not transferred, it is essential that they are a part of a well-designed conservation strategy for the elements of concern. The major limitation to these agreements is that they are of limited duration and usually subject to termination by either party. On the other hand, they can be developed and implemented quickly, and the cost is usually minimal.

Acquisition of land is another tool. Law professors often introduce the concept of property rights by comparing the ownership of property to the ownership of a bundle of sticks. Each stick represents a specific property right: the right to build structures, the right to will it to your descendants, the right to drill for water, the right to cut timber and so on. Each right, or interest, can be separated from the others and sold on the open market.

Ownership of the entire bundle of sticks (or rights) is known as ownership of "fee title," or "fee title absolute." When one or more specific interests (or rights), but not all of them, is acquired, the ownership is known as "less-than-fee" interest.

Acquisition of fee title is the most straightforward way to protect biological resources that depend on that particular tract of land. Because all of the rights are transferred to the new owner, s/he can prevent those activities that threaten the element(s) of diversity. The only remaining threat to ownership of fee title is the fact that the government still could condemn the property, and do with it what it felt appropriate, if it believed that such an action was in the public interest.

The major drawback to acquisition is that it is very expensive. To lower the purchase price, various tax incentives can be identified for the seller. The seller might be persuaded to donate a portion of the property and sell the remainder. The net effect is a "bargain sale" from the perspective of the purchaser. If the donation goes to a government agency or to a recognized non-profit organization, significant tax advantages can be realized by the seller. Public funds are available to finance government acquisition of land for conservation purposes. The Land and Water Conservation Fund is the primary way that governments in the United States finance land deals for natural areas.

Where a specific number of property rights are at issue and/or the property is not for sale, a conservation easement could be purchased to transfer less-than-fee interest in the property. Although it is possible to restrict the duration of an easement, they generally run "into perpetuity." An easement might be appropriate to keep a riparian zone vegetated or a timber stand intact.

There are two types of easements. An "easement appurtenant" occurs when a property owner acquires rights of an adjacent or contiguous property. For example, an already existing preserve could acquire rights on adjacent properties as a buffer zone through an easement appurtenant. An "easement in gross" occurs when an adjacent property owner is not benefitted by the rights at issue. For example, if a conservation organization were to acquire development rights along a river corridor, but not own any property in the corridor, these rights would be held through easements in gross.

Protection of biological diversity through a conservation easement is a complex undertaking. First, negotiation of a fair price is difficult. In general terms, the value of the easement is equal to the restrictions imposed on the property. This is measured by the nature of the restrictions and how developable the property is without them. If the easement seeks to prohibit the taking of lumber from a rocky coastline, it is worth much less than an easement to prohibit farming in northwest Ohio.

Second, easements are theoretically eligible for the same type of tax treatment described above for fee simple donations. Additionally, the land may be eligible for a reduced tax itself because of the restricted use. It pays to understand the attitudes of local officials and assessors before relying on the tax benefits of restricted uses. Remember that these officials are required to make a budget to cover the costs of local services and have no particular incentive to act quickly to reduce assessments.

Third, the ability to assign (transfer) easements has been questioned by courts. This is a matter of state law. So is the ability to sustain an easement into perpetuity. Any easement that is being considered should be reviewed by an attorney experienced in that state's property law.

Last, remember that "in perpetuity" is a long time. Many treaties that were to endure "as long as the wind shall blow and as long as the grass shall grow" were not in effect a century after they were signed. One must plan for the eventual transfer of the property and the monitoring of the easement in to the future. Not only will the owners change, but it is likely that the biological elements of interest will change over time. Therefore, it is important that the easement be a part of a grander strategy for the conservation of the specific elements.

The acquisition of property rights provides one of the strongest tools for the protection of biological diversity. This is particularly true when land owned in fee is dedicated to a system of nature preserves that prohibit government condemnation. It is possible to provide protection into perpetuity through the acquisition of property rights. Unfortunately, the cost is generally high, and it can take a long time to complete the transaction, particularly if a unit of government is involved. Conservation easements are useful tools for specific protection projects. They must be carefully designed and, in general, be part of a broader strategy.

Designation of Public Lands where property rights are held by a public agency, opportunities exist to protect the biological diversity that occurs in those areas through the use of designations. In the United States, over 100 different types of federal designations are available for public lands. (CEQ 1990) Such designations include Research Natural Areas, Areas of Natural and Scientific Interest, Wild and Scenic Rivers, Experimental Ecological Areas, and Special Interest Zoological (or Botanical) Areas. Most designations are designed to allow natural processes to remain intact so they can be evaluated. These designations require different management schemes, often prohibit certain activities and may impose new requirements on the managing agency such as increased enforcement. The details of these requirements will not be discussed in this document, but the general designation process and utility will be outlined.

Most of the designations available are administrative in nature. That is, even though most land held by public agencies is for recreation, forestry or agriculture, most agencies can designate portions of those holdings to be "used" for conservation purposes without new legislation. The process is controlled by the managers of the particular area. Although the administrative process is more streamlined than a legislative one, it must be approached with an understanding of what the area being designated requires in terms of protection, how the particular designation satisfies some or all of those requirements and awareness of any obstacles the designating agency might be facing.

Several factors will make designating an area for conservation more likely. First, the area must be clearly and demonstrably important. In other words, the reason for designation must be well thought through in biological and ecological terms. Second, the designating agency must be assured that if there will be disruptions to ongoing programs, that a valuable resource is being protected. Third, the request will be stronger if it helps meet a legal requirement or a policy goal. Last, the request will be stronger if it has popular support.

One example is the Research Natural Area (RNA) designation available for federal lands in the U.S. portion of the basin. The purpose of this designation is to preserve an array of all significant ecosystems on federal lands as baseline research areas. (Hoose 1981) Lands designated as RNAs enjoy relatively strong protection because each designated area is a portion of a national system of sites. The designation itself carries little in the way of formal protection (beyond federal ownership), and the designating agency can always change its mind if a more attractive competing use is discovered. This is unlikely however, especially if there is a sound and well articulated reason to include the area in an "array of significant ecosystems." This program has existed since 1927, an all other factors being equal, a federal land manager is less likely to sacrifice an RNA than another, undesignated area to a consumptive or extractive use. Several states also operate similar designations.

A similar designation available in the Canadian portion of the basin is the Area of Natural and Scientific Interest. These areas are being identified as part of the planning for a provincial system of nature reserves in Ontario. Where ANSIs occur on Crown lands they are given special treatment in forest management plans. Some ANSIs are to be considered as candidate nature reserves. Others will be protected through alternate means, such as general land use planning. (Smith 1987)

One of the strongest designations is the dedication of property rights into a system of natural areas. These natural areas are protected by strong statutory language against condemnation and conversion to another use. States can dedicate land that they already own into such a system, or private owners can dedicate property or specific property rights into such a system. For example, the rights to harvest a stand of old growth forest could be dedicated without affecting any other property rights. The Federal Wilderness System is another example of such a dedication. State dedication laws are in place throughout the U.S. portion of the basin.

Designations can be a useful tool for the conservation of diversity, although the strength of the available designations varies widely. The dedication of property rights into a system of state natural areas provides perhaps the strongest protection against conversion of land to another use. Administrative designations can generally be implemented quickly, provided that compelling evidence is available. The costs are generally minimal, but do vary with the degree of protection sought and agency one works with.

Regulation. This section is included to generally discuss the role of government regulations in protecting biological diversity. It is not here to advocate either increased regulation or the elimination of what some believe are outdated government approaches to protecting biological features.

In their 1987 report to Congress, the Office of Technology Assessment reports that "No Federal law mandates the maintenance of biological diversity, either off-site or on-site, as a national goal." Never-the-less, some federal authorities have been used to protect biological resources. Most of these focus on the protection of individual species (the Endangered Species Act of 1972, the Migratory Bird Treaty Act of 1918, the Lacey Act of 1900, the Migratory Bird Conservation Act of 1929, and the Bald Eagle Protection Act of 1940, for example) or of certain natural systems, such as the wetlands permitting provisions of the Clean Water Act. The provisions of these statutes and their supporting regulations, attempt to regulate behavior that affects particular species or systems. They tend to operate in reaction to past events, have been shaped by a series of administrative and judicial decisions, and are generally not forward-looking in nature.

Planning and zoning represent another type of regulation. Local governments, operating under state statutes, are authorized to carry out local planning and zoning activities. In general, these governments must develop a general "master plan" with extensive public input and review. The master plan, once approved, is then translated into specific zoning regulations. This process can be used to protect natural features, including biological diversity. Local governments are best situated to receive and consider input from whatever interests might be affected by these decisions.

The strength of protection afforded by regulatory programs is variable, depending on the types of restrictions imposed and number of variances allowed. These programs can provide very strong protection, but tend to be costly and slow to implement.

This section identifies six categories of conservation tools that can be used to conserve biological diversity. These categories should be thought of as a system of techniques that can and should be used together. In some cases, they should be used together over time, such as beginning an education campaign, followed by land owner notification, then by registry, then by management agreement and eventually by acquisition (if necessary). They can also be grouped together spatially. An ecologically based protection plan might call for strong, strict protection at the core of a project area, and different levels of protection elsewhere on the landscape. In other instances, they should be used together. For example, if land is acquired for conservation purposes, it needs to be managed to that same end. Acquisition, without management, is not likely to sustain those biological features that caused the land to be purchased.

The most useful conservation tools will be those that satisfy the needs of the basin's human population at the same time as protecting its biological diversity. The time has past when the Great Lakes ecosystem can be thought of without including the human component. New tools need to be designed that ensure the economic activity in the basin is compatible with the ecological processes that support the life present in it. The remainder of this appendix profiles selected government programs that can be used to support the development of these new conservation tools.

Conservation Tools Supported by Government Programs (see Table 5)
* These programs provide research capacity or specialized information that may indirectly support these tool categories.

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