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Baseline documentation is developed in advance of a conservation easement’s establishment to document the condition of the property to be eased. The documentation identifies the conservation values to be protected and provides a baseline against which subsequent changes to the land may be recognized. This guide explores the baseline’s purposes, the content needed to support these purposes, and considerations for implementation.
A conservation easement empowers its holder to block actions that could impair the natural, scenic, or other resources—the “conservation values”—protected by the easement. The easement’s granting document (the “grant”) includes specific, perpetual limitations, effective from the moment the grant is signed by the landowner. This legal operation requires an account of the existing conservation values to be protected, and a baseline against which changes to the land (whether driven by human action or not) may be identified. The term baseline documentation (sometimes “baseline report” or other descriptive title) refers to the documentation prepared to serve this specific purpose. The baseline documentation provides a snapshot of the condition of the land at the time of the easement’s establishment, supporting the easement holder’s monitoring of changes and, as necessary, enforcement of the easement if actions detrimental to the conservation values and the easement’s covenants are discovered.
As a publicly recorded document, the grant benefits from concise drafting focused on the specific legal rights and restrictions that define the easement. While documentation of the conservation values protected by the easement provides illuminating context for the grant, its potentially detailed and multi-media character is generally better housed in a separate, unrecorded document—the baseline documentation.
Practices for collecting, documenting, and compiling baseline documentation data vary. Some material is consistently included. Other elements are common, but not universal. This guide begins by identifying the core purposes and potential secondary functions of baseline documentation, and then identifies, in turn, material that is generally necessary, potentially (but not necessarily) useful, and generally inadvisable to include.
The easement holder enforces the covenants contained in the grant of conservation easement in service of the conservation objectives. This begs the questions of what are the conservation values of the property (at the time of the easement’s establishment) to which these covenants and objectives are applied, and how will this information illuminate the legal operation of the easement or otherwise aid in stewardship of the land over time.
By accepting a conservation easement, the holder receives an extraordinary legal power to permanently restrict land use for the purpose of protecting specified conservation values and advancing particular conservation objectives. This power must be exercised in the public interest. There is no inherent public benefit in restricting development or limiting the use of land in the absence of these values and objectives. (On the contrary, land development may serve a wide range of essential public needs, such as housing, recreation, and commerce.)
Before conservation organizations deploy this powerful tool, they must first determine that conservation of the subject land will yield true public benefit. Baseline documentation enables easement holders to permanently document why a specific property deserves protection, and how its conservation benefits the public.
Change is relative. A grant of conservation easement begs a question that baseline documentation answers: against what measure will future changes and activities be compared? The dialogue between the grant and the baseline supports two critical elements of easement administration: monitoring and enforcement.
When an easement holder’s staff or volunteers monitor the eased land, the baseline documentation is the foundational reference point. The maps, photographs, and descriptions from the baseline documentation, as supplemented by years or decades of subsequent monitoring reports, provides a necessary point of comparison for each future site visit.
If a violation is discovered, the baseline documentation—finalized on or before the effective date of the easement—is the most relevant evidence that the violative condition happened while—not before—the restrictions were in place. If litigation is necessary, the baseline documentation will be a central piece of evidence, resolving the entire factual question about whether the condition pre-dated the easement itself.
All factual evidence is potentially admissible in an enforcement action, including more recent monitoring reports, photographs, and more. But baseline documentation has a number of features that make it especially useful. First, wherever the language of a grant includes concepts such as “existing improvements,” evidence of conditions at the precise moment when the restrictions take effect resolves questions in a way that evidence from a year later may not. Second, properly prepared and acknowledged baseline documentation may avoid a range of routine challenges to admissibility of evidence in a court of law, particularly if prepared and acknowledged as a “record of a regularly conducted business activity.” Finally, the countersignature of baseline documentation by the easement-granting landowner provides an additional indication of reliability. These latter features are addressed in depth in the Model Baseline Documentation Acknowledgment and its corresponding commentary.
The Internal Revenue Code provides an incentive for donations of conservation easements. Like the conservation organizations receiving the donations, the federal government has an interest in ensuring that these tax incentives only support contributions that actually advance the public’s interest. As a result, the requirements of the Code and corresponding regulations impose rules that are broadly coterminous with the goals of conservation in the public interest. Accordingly, while baseline documentation is foremost a tool to advance conservation, it is also necessary for a donor to claim a deduction.
Specifically, the treasury regulations require that wherever a donor retains rights that “may impair the conservation interests associated with the property,” there must be “documentation sufficient to establish the condition of the property at the time of the gift,” and that the donating landowner signs a statement certifying the accuracy of the documentation. Because virtually all conservation easements allow the landowner to continue using the property in various ways, baseline documentation is regarded as a universal requirement for deductible donations.
Baseline documentation that serves the holder’s practical and legal needs regarding management of the easement will incidentally be sufficient to substantiate the donation for a donor’s purposes. Courts have found that baseline documentation that adequately describes the condition of the property for the holder’s monitoring and enforcement purposes will generally meet the regulatory documentation standards.
(See Townley v. United States, No. 3:22-cv-107 (M.D. Ga. March 27, 2024), holding that baseline documentation substantially complied with federal regulations, based on the signed acknowledgment of the holder that the baseline sufficiently described the property’s condition for easement monitoring purposes. See also Brooks v. Commissioner, T.C. Memo 2022-122, holding that baseline documentation is “woefully inadequate” where a lack of any photographs, maps, or specific descriptions of the condition or location of protected conservation values on the property resulted in a baseline report that would be virtually useless for monitoring or enforcement.)
Land Trust Standards and Practices, requirements of the Land Trust Accreditation Commission, and enrollment requirements for the Terrafirma Risk Retention Group all address baseline documentation. Their demands are generally coterminous with sound conservation practice.
Land Trust Practice 11B is set forth verbatim:
The Land Trust Accreditation Commission’s “Accreditation Requirements Manual” specifies baseline documentation requirements by citation to, and paraphrase of, the Practice 11B requirements quoted above.
Eligibility for insurance through Terrafirma requires complete baseline documentation for every insured easement. The requirements are generally coincident with Standards and Practices, with some additional detail and commentary. Baseline completeness requires (set forth here verbatim):
Terrafirma allows some flexibility for older easements, but desires to see efforts to correct defects, including obtaining missing landowner signatures, and supplementation of deficient baseline reports with current condition reports.
The Terrafirma eligibility requirements go on to include more extensive commentary on baseline documentation completeness. For example (paraphrased here for conciseness):
To maximize its legal effect, baseline documentation should contain material that serves its function and avoid superfluous content. The following sections identify, in turn, essential, sometimes useful, and ill-advised components of a baseline.
Since the baseline is not recorded, information must be included to conclusively link it to the grant with which it will be in dialogue forever. Accordingly, introductory content should include a cross-reference to the grant of conservation easement by title, grantor, and a property description that mirrors the grant (e.g. parcel identification numbers, street address, etc.).
Baseline documentation should orient the reader to the property and the easement. There is no precise formula for how much of this background material is necessary or helpful. Instead, consider that the primary audience for this information is people of the future—the indefinite class of successive landowners and stewards who will engage with the grant into the future. Upon opening the baseline documentation file, what information will be helpful to bring these future readers up to speed on the property and the factual basis for the easement? Examples of useful information include:
Every grant of conservation easement identifies its purposes or objectives, which are tuned to protect various conservation values of the protected land. These, for example, might include natural habitat, scenic views, water resources, or productive soils. For each objective identified in the grant, the baseline documentation provides an opportunity to expound on the protected values. A distillation of this material is sometimes included directly in the grant, but the baseline documentation allows room for greater detail.
The methods for substantiating conservation values will depend on the nature of the values. For example, where an easement protects a viewshed, description of the viewing area and notable features of the view is likely sufficient. For an easement protecting habitat, a concise description of the types of terrain, forestation, and habitat value is likely sufficient. As discussed below, a thorough biological analysis is often not necessary.
The specificity of this information should not exceed the relevant credentials of the individuals who will certify its accuracy. For example, identification of wetlands, forest type, soil type, etc., should not be inferred, but either substantiated by a person with the requisite professional credentials, or determined by citation to an authoritative third-party source, such as the U.S. Geological Survey or the U.S. Fish & Wildlife Service.
Substantiation supports stewardship
Information substantiating the grant’s conservation objectives may assist the holder throughout the easement’s life. When the holder is inevitably called upon by a landowner to exercise discretion under the grant (such as a request for interpretation, waiver, or approval of a matter subject to holder review) this information will assist decisionmakers in weighing its options.
The federal tax rules do not specifically require that the baseline documentation includes specific factual substantiation of the land’s conservation values. However, a deduction will be disallowed if the property does not actually possess conservation values that are protected by one or more of the “conservation purposes” recognized by the Internal Revenue Code. Baseline documentation that includes evidence of conservation values may inoculate an easement against a challenge on this basis. For example, if a donated easement seeks to preserve open space, the donor must be prepared to demonstrate (among other things) that the open space will “yield a significant public benefit,” which may be demonstrated by a range of listed factors. Addressing these factors in the baseline documentation may carry negligible up-front cost, improve the usefulness of the baseline for stewardship purposes, and incidentally protect the basis of a donor’s claimed tax deduction.
The core material of baseline documentation is data demonstrating the condition of the property at the beginning of the easement. There is no hard-and-fast rule as to how much information is enough to include. That question will turn on the specifics of the property, the conservation objectives of the easement, and the covenants in the grant. Areas with varied and intense permitted uses should be documented with particular care. The central question is whether the compiled materials will be sufficient to determine whether a violation has occurred. Changes to improvements may be subtle enough to avoid detection for some time, but descriptions fixed in the baseline documentation provide a crucial touchstone. Thoroughness sets a holder up for long-term success. Incidentally, by compiling a record sufficient for enforcement purposes, the same record will meet the above-described substantiation requirements for an easement donor intending to claim a federal tax deduction.
Maps are likely to be the most often-referenced contents of the baseline. The primary map is a copy of the formal easement plan referenced in, and generally appended to, the grant itself. This map should clearly delineate areas identified as subject to different conservation objectives or restrictive covenants in the grant, building sites, improvements, trails, rights-of-way, known dumps, environmentally sensitive areas, and all other physical details relevant to the provisions of the grant. This map should be dated and clearly identifiable, so it can be definitively referenced and distinguished from any draft maps that predate it, or updated maps produced later. Other maps can add valuable information, such as one overlaying boundaries with an aerial photograph, or one locating photo points, improvements, or other important features and conditions. Depending on the nature of the easement, separate maps depicting soil types, water resources, or other special information may be valuable as well.
Photographs offer perhaps the most powerful proof of conditions on the land and should be used liberally to document as much of the property as is reasonably practicable to identify the resources protected and existing improvements and uses on the land. Photo maps, preferably accompanied by coordinates or other location data (as easily accomplished with modern digital tools), position the photographs on the land and make for a useful reference.
If one or more covenants in the grant impose measurable limits on use of the property, such as a cap on impervious coverage, including a calculation of the current measurements will ease future administration.
Where the materials are collected and prepared by individuals with notable skills and credentials, stating so has additional value. For any interested third party, a statement of preparer qualifications indicates credibility. Including signature blocks for preparers to attest to their work on the baseline documentation has special utility to ensure the admissibility of baseline documentation as evidence in an enforcement action. This matter is addressed below and in the commentary to the Model Baseline Documentation Acknowledgment.
Baseline documentation is a legally operative component of an easement transaction. This requires careful attention to the manner in which it is assembled and acknowledged by both holder and landowners. To support conservation organizations in refining this practice, WeConservePA has published the Model Baseline Documentation Acknowledgment, which may be used in conjunction with baseline documentation prepared in a range of styles or formats. The accompanying commentary identifies a number of legal issues that bear on the process and content for legal acknowledgment of the baseline documentation material.
Every easement is different. The following items are not universally needed but may be helpful on a case-by-case basis.
The protection of diverse plant and animal habitat is a public benefit of many conservation easements. But preparing and including a detailed inventory of observed species is not universally necessary. Considering the resources required for a thorough species inventory, consideration should be given to the benefits relative to the opportunity costs.
Consider that even where protection of biological resources is a conservation objective of an easement, the easement functions by prohibiting certain landowner actions. It typically does not compel a landowner to proactively protect or support the flourishing of any species—only to refrain from those actions that would do harm. Accordingly, the loss or absence of a particular beneficial species identified in the baseline documentation does not, in and of itself, suggest a violation of the easement.
A biological inventory may have immediate utility in service of:
There may also be utility in:
Whether these benefits justify the costs to produce the information, and the level of detail that is helpful or required, is a case-by-case determination.
At worst, a detailed inventory of species may support a future claim that an easement should be extinguished for impossibility of its original purpose if the documented species are no longer present or viable. Climate change fuels this risk, as species continually migrate and adapt. This risk is heightened where an easement is narrowly focused on a specific habitat protection conservation objective.
This issue is generally avoided when a habitat objective in a grant of conservation easement is stated in general terms—focused on habitat value for an indefinite class of future flora and fauna. For example, the Model Grant of Conservation Easement and Declaration of Covenants, at section 1.04(2), identifies a general habitat objective “[t]o protect and improve the quality of natural habitat for animals, plants, fungi, and other organisms, particularly Native Species,” and an area-specific objective, at 1.04(b)(1) “to protect and enhance the richness of biodiversity and natural habitat.” Without listing specific species, a corresponding description in the baseline could read something like:
As documented in the photographs and other contents of this Baseline Documentation, the Property contains a variety of native plant communities, successional stages, and physical features that together support habitat diversity and ecological function. These features contribute to the property's long-term capacity to support wildlife, native biodiversity, and ecological resilience. The conservation of these natural habitats is consistent with the purpose of protecting and sustaining the ecological integrity of the landscape, including the potential to support a range of species and ecological communities over time, whether currently observed or expected in the future.
If an inventory or short list of notable species is included in the baseline documentation, careful use of language can avoid risk. Avoid language that could imply that the easement protects a closed list of species, such as: “The easement protects habitat of the following species.” Instead, use open-ended language that explains the purpose of the list, such as:
The following section provides a summary of biological communities observed on the Property at the time of this baseline documentation. This information is intended to characterize the current condition of the property and inform long-term stewardship. It is not intended to define the full extent or variability of biological diversity that the property may support over time.
Documenting the presence of invasive species can provide useful detail about the condition of the property at the time of the grant, providing a helpful reference for stewardship, and possibly a tool for communicating with current and future landowners about best management practices. On the other hand, it may risk emboldening a future landowner in resisting holder’s encouragement to partner in combatting its spread and potentially complicate future enforcement if landowner actions introduce the same or similar invasive plants in other locations in violation of covenants in the grant. Balancing these soft factors is a matter of holder discretion.
Ordering one or more levels of environmental assessment is a common part of due diligence for many easement projects. The resulting reports will generally remain in the permanent files of the easement holder. While these reports are of clear value as part of the due diligence, their value for easement management is limited. Including the report in its entirety is generally unnecessary, creating a needlessly voluminous file.
It may be useful to summarize key findings in narrative form with citation to the report, particularly if the report identifies problems that might impact administration of the easement or require specific future monitoring, or if they reveal material and previously unknown information about the land, such as unique geological or hydrological features.
Funders of conservation easement projects may impose particular baseline requirements. For example, NRCS-funded projects may require detailed records of species, field crops, and other factual material that might not be strictly necessary otherwise.
Some easement holders routinely append title reports, prior recorded documents, corporate resolutions of holder, appraisals, copies of mortgages, or other due diligence materials. These items, while important pieces of an easement holder’s permanent records, have a strained relationship to the purpose and core contents of baseline documentation. Including them presents two basic problems.
First, nonessential material introduces avoidable legal risk, however remote. Grants of conservation easement generally incorporate the baseline documentation by reference, meaning that all material included may be considered (as a legal matter) part of the grant itself. In contrast with the grant of conservation easement, which is generally crafted carefully with assistance of legal counsel, these external records are more likely to include errors, misstatements, or other material that could create or fuel future discrepancies.
Second, nonessential technical and legal material may undermine the veracity of the acknowledgments of the holder and landowner that the material included in baseline documentation is true and correct. A landowner should be able to review the narrative material, photographs, and descriptions of the property, and confidently affirm or disaffirm their accuracy. Less so with respect to the more technical contents of documents produced by third parties, which are likely to contain information the landowner is in no position to affirm or reject. If information that is not reasonably affirmable by the landowner is included in the baseline documentation, the wording of the acknowledgement affirmed by the landowner should reference only the relevant material.
Some holders have adopted the practice of placing summaries of the grant’s covenants within the baseline documentation. The intention is to provide a convenient reference point for stewardship staff and landowners without the need to parse grant language in day-to-day management. This practice is generally ill-advised.
A grant of conservation easement is carefully prepared to delineate clear legal rights, generally with the assistance of legal counsel. It is simply impossible to prepare a summary that does not erode the nuance of the full grant text—nuance that presumably exists for good reason. Loss of nuance can foil appropriate monitoring and informed communications with the landowner.
Baseline documentation is commonly incorporated by reference into the grant, as its information about present improvements and conditions animates important defined terms, such as “Existing Improvements.” Because of this incorporation, summaries of grant provisions in the baseline documentation may unintentionally become part-and-parcel of the grant’s covenants, enshrining these summaries as a definitive interpretive tool. The result may complicate or prejudice the enforcement of the formal covenants in ways that are difficult to foresee. This risk may be mitigated by including qualifying language, stating that the summaries are subordinate to the covenants set forth in the grant. However, this language—though helpful in the event of a direct contradiction—will not eliminate the risk that a summary will drive a court to accept an undesirable interpretation in the event that a provision of the grant is found to be ambiguous.
Summaries (or notes on customizations performed on holder’s standard model for the particular grant) may have utility for day-to-day management by the holder but are better suited as a separate (and ideally internal) tool for reference than as a component of baseline documentation.
Adopting policies for easement administration, such as an amendment policy, is a best practice for holders of conservation easements. They equip decisionmakers with a plan of action and ensure that discretion will be applied in an even-handed manner. These policies are, however, subject to change over time at the discretion of a holder’s board of directors. Some easement holders, recognizing the materiality of these policies for administration of the easement, have occasionally attached them to baseline documentation. At best, including policies may be a signal to a landowner of holder’s intention to hold itself to clear standards when discretion is involved. At worst, however, years in the future, holder may find itself compelled to act in accordance with the version so attached, notwithstanding that the organization has made any number of improvements to the policy in subsequent years. Because of baseline documentation’s incorporation into the grant, the policy may be interpreted as a material component of the grant itself—a binding procedure for matters within the subject of the policy.
There may be compelling motivations to include information about a landowner’s intentions for granting an easement. The history of a given property and the stewardship legacy of its current and prior owners can be compelling and may prove useful or persuasive on future questions of interpretation, enforcement, or in the event of a necessary amendment.
However, including this material is not without risk. After an easement is granted, the holder’s duty is to enforce the easement on behalf of the public. Enshrining the landowner’s history and intentions in the baseline may muddy this duty, implying that the easement is a tool to advance the landowner’s personal interests, or that the landowner’s intentions are a key interpretive tool. Advancing the landowner’s intent may be in harmony with the public purposes of the easement, but perhaps not.
Landowner comments and questions about draft baseline documentation are to be expected and welcomed. Afterall, landowners need to certify accuracy. However, landowners may, for a variety of reasons, desire to see material included in baseline documentation that solely advances some personal interest. For example:
A land trust has a duty to use its resources exclusively in service of its public purposes. Preparing or including baseline content upon an owner’s request that is not material to the conservation objectives represents a potential departure from this duty. It may also introduce credibility issues.
Baseline documentation preparers should avoid including information that places the credibility of the baseline documentation at risk. Content that introduces potential vulnerability to attacks on its admissibility as evidence in an enforcement action includes:
Baseline documentation is, by definition, a once-in-time record. Its purpose is to document the conditions at the beginning of the easement. Accordingly, baseline documentation should not be amended, substituted, or altered following its acknowledgement. These actions introduce risk of factual discrepancies about the contents, and opportunity for conflict or doubt about the veracity of the information contained. In rare instances, it may be necessary to amend the baseline to correct an error. This should be done by a separate, dated writing, executed in the same form as the acknowledgement of the original baseline, and containing recitals identifying the reason for the amendment.
Otherwise, additional information or changes to the land occurring after closing should be documented only in supplemental material (sometimes called “current conditions reports”). For ordinary changes that do not represent violations or impair or undermine the conservation objectives, ordinary monitoring reports may be sufficient. If changes occur that have more significant impacts, such as the exercise of a subdivision or building right or amendment of the grant, a current conditions report may be prepared in similar form to the original baseline documentation and countersigned by the landowner.
