WeConservePA has modified two provisions of the Model Grant of Conservation Easement and Declaration of Covenants. These changes, which involved user discussion and broader public review, were finalized after receiving unanimous support at WeConservePA’s Model Conservation Easement Roundtable earlier in November.
CHANGE 1: Subsection (a) of 1.07 Federal Tax Items now reads:
Qualified Conservation Contribution. The undersigned Owner or Owners intend this grant of Conservation Easement, a transfer of a partial interest in real estate without consideration except as set forth in this article, to qualify as a qualified conservation contribution (as defined under §170(h)(1) of the Code). If the Conservation Easement is transferred to any Person, that Person must commit to hold it exclusively for conservation purposes as defined in the Regulations.
Previously, it read:
Qualified Conservation Contribution. The Conservation Easement has been donated in whole or in part by the undersigned Owner or Owners. The donation of the Conservation Easement by this Grant is intended to qualify as a charitable donation of a partial interest in real estate (as defined under §170(f)(3)(B)(iii) of the Code) to a Qualified Organization. If the Conservation Easement is transferred to any Person, that Person must commit to hold the Conservation Easement exclusively for conservation purposes as defined in the Regulations.
The primary reason for the edit is that Holders and Owners do not always know with certainty that the easement involved a donation at the time of the grant. The edit focuses on what can be represented with certainty: the Owners intend the grant to qualify as a qualified conservation contribution.
CHANGE 2: The Area-Specific Conservation Objective for the Highest Protection Area at subsection 1.04(b) now reads:
Highest Protection Area. To protect and enhance the richness of biodiversity and natural habitat.
Previously, this text was followed by the words, “keeping the area wild or undisturbed in character.”
This change is explained in an addition to the Commentary, which reads as follows:
Wild and Undisturbed. In 2021, the wording of the Highest Protection Area objective was shortened and now reads: “To protect and enhance the richness of biodiversity and natural habitat.” Prior to this, it went on to say “, keeping the area wild or undisturbed in character.” This deleted phrase caused some confusion. Some people interpreted the text such that they should heavily err on the side of avoiding or blocking activities—even if there might be significant potential to enhance biodiversity and habitat—in favor of not directly disturbing the land. Unwavering use of such an interpretation can be unfortunate because as invasive species, climate change, and other factors make it increasingly hard for land to naturally regenerate and serve as healthy ecosystem, the frequency of situations is increasing where human intervention on the land to boost biodiversity and habitat is desirable.
We should be on guard for hubris that tells us that we can fully control and improve natural systems; we should also guard against proposals that may not be authentic in seeking to protect and enhance the natural values of the land. In any case, we should avoid the fallacy that hands-off management is always (or perhaps even often) the best strategy for optimizing biodiversity and habitat.
Elaboration. You may choose to elaborate on how the objective affects human activities on the land. For example:
To protect and enhance the richness of biodiversity and natural habitats, only disturbing the land for this purpose or, with minimal disturbance of habitat, for nonintrusive enjoyment of the land.
