Governor Brown signed S.B. 901 into law on September 7. The controversial and lengthy bill is simply entitled “Wildfires,” but has garnered a lot of media attention for what many are calling a utility bailout for the Northern California fires. What hasn’t received much attention is a small paragraph slipped into the bill to amend California’s conservation easement enabling statute, California Civil Code Sections 815–816.
The new section is now found at Civil Code Section 815.11:
“815.11. For any conservation easement purchased with state funds on or after January 1, 2019, wherein land subject to the easement includes some forest lands, or consists completely of forest lands, to the extent not in conflict with federal law, the terms of any applicable bond, or the requirements of any other funding source, the landowner shall agree, as part of the easement management plan, to maintain and improve forest health through promotion of a more natural tree density, species composition, structure, and habitat function, to make improvements that increase the land’s ability to provide resilient, long-term carbon sequestration and net carbon stores as well as watershed functions, to provide for the retention of larger trees and a natural range of age classes, and to ensure the growth and retention of these larger trees over time.” (emphasis added)
Civil Code Sections 815–816 were passed by the legislature in 1979 and last amended in 2005. Little discussion regarding this 2018 amendment occurred among the land trust and conservation community prior to its passage and the legislative history contains no analysis regarding this particular paragraph.
While preservation of forest is laudatory and particularly important in an era of climate change, it is unclear how this language will impact working forest conservation easements—or any easement over property with trees on it, since the statute is silent as to how many trees a property must contain to qualify as “forest land.” Voluntary conservation easements are meant to be a flexible tool for conservation of all types. Not all conservation easements over property with trees have the single or primary goal of conserving the trees. Often, the emphasis may be on preserving open space or migration corridors, supporting small working forests and agriculture, or reducing development rights to prevent suburban sprawl.
New Section 815.11 may cause a chilling effect for some bargain-sale donations intended to meet these other conservation goals and may also create a net loss in preservation. After figuring out what forest land means, if it turns out that new Section 815.11 does apply to a particular easement, then it could be more difficult for landowners to retain building envelopes or multi-zone reserved rights on the forest land. One solution is to exclude any area on which building rights will be retained, but often it is preferable to keep a building envelope within an easement so that some restrictions will still apply to the envelope. Now, the result may be that the easement will exclude the building area entirely, leaving a building area completely unprotected and unrestricted right next to the protected easement property.
Finally, new Section 815.11 may also create challenges for landowners that wish to implement a carbon project in conjunction with a conservation easement, to leverage different funding sources for different conservation goals.
The resolution of these and other issues will hinge on how each of the state funding agencies interprets new Section 815.11 and whether those interpretations are consistent (another issue entirely). One wonders whether such an important legislative change to a 39-year-old statute should have been vetted a bit more thoroughly with a wide range of stakeholders, such as the California Council of Land Trusts and the Land Trust Alliance. Further analysis will be forthcoming.