BRWCA_Conservation_Easement_Draft.docx

UNITED STATES DEPARTMENT OF THE INTERIOR

U.S. FISH AND WILDLIFE SERVICE

CONSERVATION EASEMENT

THIS INDENTURE, made this _________ day of _____________, 20_____by and between __________________________, hereinafter referred to as the Grantor(s), and the UNITED STATES OF AMERICA and its assigns, hereinafter referred to as the United States, acting by and through the Secretary of the Interior or his/her authorized representative.

Authority: The Migratory Bird Conservation Act, 16 U.S.C. Sections 715a-715s; the Fish and Wildlife Act of 1956, 16 U.S.C. Sections 742a-742j; the Emergency Wetlands Resources Act of 1986, 16 U.S.C. Sections 3901-3932; and the Land and Water Conservation Fund Act 1965, 16 U.S.C. Section 4601-9(a)(1) authorize the Secretary of the Interior to acquire lands and waters or interests therein for the development, advancement, management, conservation, and protection of fish and wildlife resources.

Purposes and Intent: The purposes and intent of this easement are to preserve and protect in perpetuity the habitat quality, functions, and values of the lands described in the attached Exhibit A by maintaining aquatic, wetland, riparian, and upland habitat; to provide water, cover, food and space for native fish and wildlife; to maintain wildlife habitat connectivity and migratory corridors; to maintain healthy populations of native wildlife species; and to protect and maintain water quality and quantity.

WITNESSETH:

WHEREAS, the lands legally described in Exhibit A and delineated on Exhibit B (Easement Lands) contain habitat suitable for inclusion in the Bear River Watershed Conservation Area;

NOW, THEREFORE, for and in consideration of the sum of __________________ Dollars, to the Grantor(s) in hand paid, the receipt of which is hereby acknowledged, Grantor(s) hereby grant and convey unto the United States, and its assigns, commencing with the acceptance of this indenture by the Secretary of the Interior or his/her authorized representative, a conservation easement in perpetuity over the Easement Lands, together with the right of ingress and egress on, over, across and through the lands of the Grantor(s) by authorized representatives of the United States for the purpose of monitoring the Grantor’s/Grantors’ compliance with the terms hereof (Conservation Easement). The Grantor(s) retain(s) all water rights appurtenant to the Easement Lands, but shall manage and protect those water rights as described in this Conservation Easement. Grantor(s) covenant with the United States on behalf of themselves, their heirs, executors, administrators, successors, and assigns, forever, to do and refrain from doing upon Grantor’s/Grantors’ said lands the various activities hereinafter recited, it being hereby agreed that the doing of and refraining from said activities upon said lands is and shall be for the benefit of the United States through the preservation and conservation of the land. No rights herein are granted to the general public for access to or entry upon the land subject to this Conservation Easement for any purpose. The lands to which the terms of this Conservation Easement apply are located in __________ County, State of Idaho , to wit:

Subject, however, to all valid, existing leases and existing rights-of-way for highways, roads, railroads, pipelines, canals, laterals, electrical transmission lines, telegraph and telephone lines, cable lines, and all outstanding mineral rights vested in third parties as of the effective date hereof.

The conveyance hereunder shall be effective on the date of the execution of this Indenture by the Secretary of the Interior or his/her authorized representative; provided, however, that such acceptance must be made within 12 calendar months from date of the execution of this Indenture by the Grantor(s), or any subsequent date as may be mutually agreed upon in writing by both the Grantor(s) and the United States, hereinafter referred to as the Parties, hereto prior to the expiration of such date; and provided further, however, that in the event such acceptance is not made by such date, this Indenture shall be null and void.

The Grantor(s), for themselves and for their heirs, successors, assigns, lessees, and any other person claiming under them, covenant and agree that they will cooperate in the maintenance and protection of the habitat delineated on the map(s) attached as Exhibit B, and as documented in the Habitat Baseline Survey Report (Baseline Report), dated ________________ and attached as Exhibit E, for the protection of fish and wildlife habitat as identified in the purposes and intent of this Conservation Easement. The Parties acknowledge that the Baseline Report will be prepared for the property, at the expense of the U.S. Fish and Wildlife Service (Service), to document the physical and biological characteristics of the property at the time of the grant of this Conservation Easement. The parties further acknowledge that this Baseline Report will serve as documentation of habitat conditions and will be used to ensure compliance with easement terms and conditions. A copy of this Baseline Report shall be maintained on file by both the Grantor(s) and the Service. The Parties hereby acknowledge that the Baseline Report will accurately reflect the condition of the property subject to this Conservation Easement at the time of conveyance.

This Conservation Easement shall limit the use of the property to activities that are consistent with the conservation purposes identified herein, including ranching, grazing, haying, cropping, hunting, fishing, and those uses and practices consistent with the terms hereof and identified in Exhibit C.

The restrictions hereby imposed upon the use of said lands of the Grantor(s) and the activities which Grantor(s) covenant to refrain from doing upon said lands, except as may be authorized from time to time by the express prior written consent of the Service, are identified in Exhibit D.

This instrument, including Exhibit A, and the above referenced map(s) attached as Exhibit B, Exhibits C, and Exhibit D, and the Baseline Report attached as Exhibit E, sets forth the sole and complete agreement of the parties with respect to the Conservation Easement. It is understood that this indenture imposes no other obligations or restrictions upon the Grantor(s) and that neither they nor their successors, assigns, lessees, nor any other person or party claiming under them shall, in any way, be restricted from utilizing all of the subject lands in the customary manner for agricultural purposes except as provided herein.

It is further understood that the rights and interests granted to the United States herein shall be administered by the Service, pursuant to the National Wildlife Refuge System Administration Act, 16 U.S.C. Sec. 668dd, as part the Bear River Watershed Conservation Area.

SPECIAL PROVISIONS

1. The conveyance hereunder shall be effective on the date of the execution of this Indenture by the Secretary of the Interior or his/her authorized representative; provided, however, that such acceptance must be made within 12 calendar months from the date of the execution of this Indenture by the Grantor(s), or any subsequent date as may be mutually agreed upon in writing by the Parties hereto prior to the expiration of such date; and provided further, however, that in the event that such acceptance is not made by such date, this Indenture shall be null and void.

2. Notice of acceptance of this Indenture shall be given to the Grantor(s) by certified mail addressed to __________________________ and shall be effective upon the date of mailing, and such notice shall be binding upon all Grantor(s) without sending a separate notice to each.

3. Payment of the consideration will be made by a United States Treasury check or by electronic funds transfer after acceptance of this Conservation Easement by the Secretary of the Interior or his/her authorized representative and after the Attorney General, or in appropriate cases, the Solicitor of the Department of the Interior, shall have approved the Conservation Easement interest thus vested in the United States.

4. The United States acknowledges that a tax deduction may be available for sales or donations of real property interests to the United States at or below the fair market value. It is the Grantor’s/Grantors’ obligation to establish the amount of the charitable contribution involved in such sale for federal tax purposes, and the United States makes no representation or warranty concerning the tax consequences of this transaction, including the value and deductibility of any intended charitable gift. If a charitable gift is claimed by the Grantor(s) in conjunction with this transaction, and to the extent not already set forth herein, the Grantor(s) must establish that this easement incorporates, and to the extent applicable, meets and implements the requirements set forth in the Section 170(h) of the Internal Revenue Code and associated regulations required for any donation to be considered a “qualified conservation contribution” as defined by those provisions and regulations.

5. The United States shall have the right to enforce, by all means provided by the National Wildlife Refuge System Administration Act and other applicable law (including but not limited to judicial proceedings at law or in equity), the provisions of this Conservation Easement including but not limited to the right to require the restoration of the property to its condition on the date of this Conservation Easement, subject to the terms of Exhibits C and D set forth herein. Nothing in this Conservation Easement shall hold the Grantor(s) liable or require the Grantor(s) to take any action to restore the condition of the property after any Act of God over which Grantor(s) had no control, including, without limitation, fire, flood, storm, and earth movement.

6. In the event of an Act of God over which the landowner had no control, the Grantor(s) and the Service will work in conjunction to restore the property. Neither party shall be held liable for the restoration cost but will develop a plan for restoration and seek funding sources for the correction of the damage.

7. Any ambiguities in this Conservation Easement shall be construed in a manner which best achieves the purposes and intent set forth on page 1 of this Conservation Easement.

8. The Grantor(s) is/are responsible to maintain any portions of the access route described in Exhibit A such that the access route can be traversed by a standard four-wheel all-terrain vehicle at least once annually.

9. The Grantor(s) shall undertake all actions necessary to protect any water rights and water uses for the Conservation Easement.

10. The Grantor(s) shall report to the Service any conditions or events which may adversely affect the fish and wildlife habitat on the Easement Lands.

11. Regardless of any violations of the terms of this Conservation Easement by the Grantor(s), the Conservation Easement survives and runs with the land in perpetuity.

12. The Grantor(s) agree/agrees to notify the Service in writing of the names and addresses of any party to whom the property subject to this Conservation Easement is to be transferred to, at or prior to the time the transfer is consummated. Grantor(s) and their successors and/or assigns shall specifically refer to this Conservation Easement in any subsequent lease, deed, or other instrument by which any interest in the property is conveyed.

13. The Grantor(s) shall undertake all actions necessary to protect and defend their legal ownership and boundaries of their property that is under this Conservation Easement.

IN WITNESS WHEREOF the Grantor(s) have hereunto set their hands and seals on this_________ day of_______________, 20_____

Grantor(s):

ACKNOWLEDGMENT

STATE )

)ss

COUNTY )

On this _____ day of_______________, 20________, before me personally appeared _____________ known to me to be the person(s) described herein and who executed the foregoing instrument and acknowledged to me that they executed the same as their free act and deed.

Notary Public:

(SEAL)

My commission expires:

ACCEPTANCE

The Secretary of the Interior, acting by and through his/her authorized representative, has executed this agreement on behalf of the United States this __________day of ___________, 20_____.

THE UNITED STATES OF AMERICA

By:

Title:

EXHIBIT A:

LEGAL DESCRIPTION

EXHIBIT B: MAPS

(Including Building Envelope (if applicable), water features, roads, annual crop areas)

EXHIBIT C:

PERMITTED USES AND PRACTICES

The following uses and practices by the Grantor(s), though not an exhaustive recital of all uses and practices of said lands, are hereby deemed to be consistent with the purposes of the Conservation Easement. Any proposed activities or uses that may impact the conservation and habitat values of the lands described in Exhibit A and/or in the Baseline Report but not identified below shall require prior written approval by the Service. In addition, certain uses and practices identified below are subject to specific conditions or require prior approval. Any activities or provisions requiring prior written approval should be submitted in writing to the Service, which will approve or deny such requests in a reasonable time frame; approvals shall not be unreasonably withheld. The permitted uses must also conform to other applicable local and state laws and regulations. The remainder of these consistent uses shall not be precluded, prevented, or limited by the Conservation Easement.

1. The Grantor(s) may maintain, repair, and/or replace the existing dwellings and associated outbuildings, with buildings of the same purpose and/or utility, in substantially the same location, for the existing residence(s) as described in Exhibit A and shown in Exhibit B, if applicable. The Grantor(s) is/are responsible for complying with all applicable laws, ordinances and regulations concerning future maintenance, repair or replacement of these existing building sites, as applicable.

2. The Grantor(s) reserve/reserves the right to construct ___________ facilities within the Building Envelope described below and as depicted in Exhibit B:

If Applicable Enter Legal Description

Grantor(s) may construct the following improvements within the Building Envelope:

If Applicable List Potential Improvements within Building Envelope

The total disturbed area within the Building Envelope is to be less than ____ acres.

3. If applicable, Grantor(s) may maintain, repair and replace existing agricultural buildings and structures of the same purpose and/or utility, in substantially the same location and size, including but not limited to corrals, hay sheds, loafing sheds, barns, or other non-residential buildings, and water facilities including but not limited to reservoirs, stock ponds, headgates, weirs, pipelines, irrigation ditches (including burning of ditches), or wells, that support agricultural uses of the property and other uses permitted herein; and with prior written approval by the Service, construction and/or development of new water facilities, reservoirs and stock ponds; provided that any maintenance, repair, replacement, construction or development activities do not create or cause long-term impairment to the habitat quality, functions, and values of the lands described in Exhibit A and the Baseline Report. Grantor(s) agree/agrees to remove, at their own expense, any unauthorized structure erected without written approval from the Service.

4. Grantor(s) may construct, maintain, repair, or reconstruct as necessary fencing and gates for ranching, and for the privacy and security of other permitted uses on the Easement Lands, provided that the fences and gates do not adversely impact migrating ungulates. Existing fencing must facilitate wildlife crossing as much as possible by leaving gates open and lowering let-down fencing, where applicable, when livestock are not present. If such actions may result in trespass, boundary fences and gates may be closed. All reconstructed existing fences and all new fencing and gates must allow for migration of wildlife across the property. However, the Grantor(s) may fence to exclude wildlife from hay or crop storage areas. Fencing is considered reconstructed when one or more major components is replaced including wire strand(s), post(s,) or pole(s). New components must meet the wildlife friendly fencing specifications below. All reconstructed and new fences must conform to the following standards unless prior written approval is granted by the Service:

a. All reconstructed and new fencing must be forty-two (42) inches or less high with a minimum gap of twelve (12) inches between the top 2 highest wires. The lowest strand of any fence must consist of smooth wire at least eighteen (18) inches above the ground. No permanent fencing may be constructed within l00 feet of an opening to a highway wildlife crossing structure. Post and rail fences are permitted provided they meet these height and spacing requirements. Parallel fencing less than twenty-five (25) feet apart, as well as woven wire and buck and rail fences are prohibited. The following exceptions are permitted:

· Fencing to exclude wildlife around haystacks is permitted and may exceed forty-two (42) inches and include mesh or woven wire fences if necessary.

· New corrals may be constructed with prior written approval of the Service. Corral gates must be left open when livestock are not present to aid in wildlife migration and movements.

· In both cases, the fenced area must be in the specific location required to exclude wildlife or corral domestic animals and no more.

b. If fences are necessary to separate grazing pastures from highway wildlife crossing structures, gates or let-down fences must be open between November 1st and May 1st. All let down fences or gates must be pulled back and secured to allow maximum usage of wildlife crossing structures between November 1st and May 1st, and when livestock are not present. If fencing of wildlife crossing structures is necessary to prevent livestock from crossing a highway, it must meet the following requirements unless prior written approval is granted by the Service:

· A temporary fence of two (2) strand or single strand wire or rails with a maximum diameter of four (4) inches,

· No higher than forty-two (42) inches above the ground and no less than twenty (20) inches above the ground,

· May be used between May 1st and November 1st, and

· Must be greater than the width of the wildlife crossing structure.

c. Any fence constructed parallel to a stream or other water body must be located at least fifteen (15) feet from the water body to allow for wildlife crossing. This is required anywhere the combination of the water body depth or flow and fencing would prevent wildlife crossing. This provision does not apply to fences along the Property boundary which are allowed as needed, provided they meet the height and spacing requirements listed above in 4.a. of this Exhibit.

5. The Grantor(s) shall be responsible for the compliance with all applicable laws for the control of noxious or invasive plant species as described in Exhibit A of the Conservation Easement.

6. Existing roads and trails located on the property at the time of the grant of this Conservation Easement are delineated in Exhibit B and may be maintained, repaired, or replaced with the same type of road within the existing road footprint.

7. Grantor(s) may grant a road right-of way or construct a road for a permitted use identified in this Exhibit C with prior written approval of the Service. Grantor’s/Grantors’ written request shall include a construction plan describing the purpose of the road, its location and, to the extent deemed necessary by the Service, information on the road grade, drainage, erosion/sedimentation impacts and mitigating efforts, areas of cut and fill, and other special concerns such as culvert placement, bridges, fords, buffer strips, reseeding and/or reestablishment of vegetation, and fish and wildlife impacts and mitigating efforts.

8. Grantor(s) may relocate existing unimproved pasture roads/trails (two-track ranch trails) on the property and may add new unimproved pasture roads/trails on the property with the prior written consent of the Service.

9. Subject to all prior leases and outstanding mineral rights in third parties as of the effective date hereof, exploration for and extraction of oil, gas, other hydrocarbons, geothermal, and/or other minerals, including, but not limited to, sand, gravel, clay, and aggregate, (“Hydrocarbons and/or Minerals”) on the Easement Lands may be conducted so long as it is in a manner that does not constitute surface mining and is in accordance with the following conditions and with prior written approval by the Service:

a. Exploration for or extraction of Hydrocarbons and/or Minerals must be conducted in a manner consistent with reasonable, site specific conditions developed by the Service to protect the values of the Conservation Easement. No refineries or secondary production facilities may be located on the property, and any hydrocarbons produced from the property must be transported by pipeline or other means approved in advance by the Service.

b. Travel for the purpose of Hydrocarbon and/or Mineral development shall be restricted to existing roads or to new roads approved in advance by the Service.

c. Areas of surface disturbance shall have only limited and localized impact and must be mitigated by restoring soils to the original contours and replanting native vegetation, as specified in a mitigation plan approved by the Service.

d. Grantor(s) agree/agrees not to enter into any lease or other agreement for the exploration or development of the interests in any Hydrocarbon and/or Mineral substance, unless such lease or other agreement includes the provisions of this section (7), and unless such lessee or other party agrees in writing to carry out any Hydrocarbon and/or Mineral exploration or development activity in strict accordance with all of the restrictions of this paragraph. Nonetheless, the Grantor(s) shall remain liable for compliance with all of the terms and conditions of this Conservation Easement.

10. Grantor(s) may conduct or allow hunting and fishing in accordance with all state and federal regulations.

11. Grantor(s) may sell, exchange, devise, or gift said lands into no more than TWO parcel(s) solely for agricultural purposes. Sale or conveyance of an undivided interest in the Easement Lands shall not constitute a division of the property, so long as the interest remains undivided from the whole and the configuration of the property remains as described in this Conservation Easement or as permitted by this paragraph. The owner of an undivided interest in any portion of the property shall not have a right of exclusive occupancy or exclusive use of any portion of the property, or any right to have the property partitioned. Furthermore, if the property is divided into more than one parcel as herein provided, the Grantor(s) must comply with all federal, state and local laws, ordinances, and regulations concerning subdivision, including, if required, the surveying of the parcel to be sold and the submission of the proposed separate tract to state and/or local review authority for approval. Grantor(s) shall furnish to the Service a copy of any document or conveyance utilized to affect the transfer of the property upon execution of said document or conveyance. Both parcels will continue to be subject to this Conservation Easement.

12. Cropland areas identified on Exhibit B are exempt from Paragraph 9 of Exhibit D. If any cropland areas are restored to native vegetation, then Paragraph 9 of Exhibit D will apply to such restored areas.

13. Minor surface disturbances associated with the construction of structures or buildings as authorized under Paragraphs 1 and 2 of this Exhibit are allowed.

14. Grantor(s) will cooperate in maintenance of the fish and wildlife habitat by maintaining permanent vegetative cover on said habitat areas, as follows: There shall be no haying or mowing of areas not identified as croplands on Exhibit B for any reason until after July 31st in any calendar year, no alteration of upland, wetland, and riparian habitats or other natural features by digging, plowing, disking, or otherwise destroying the vegetative cover on the habitat areas delineated on Exhibit B, unless prior approval in writing is granted by the Service; except that grazing the aforesaid lands is permitted at any time throughout the calendar year without approval in writing.

EXHIBIT D:

PROHIBITED USES AND PRACTICES

The following uses and practices on the property subject to this Conservation Easement are hereby deemed to be inconsistent with the purpose of the Conservation Easement because they would alter the topography, wildlife habitat, or other natural features, and are expressly prohibited, except as otherwise provided in Exhibit C, or as expressly authorized by a prior recorded easement, lease, or other instrument:

1. Draining, causing the draining of, or permitting the draining of the wetlands areas delineated on Exhibit B or any waters appurtenant thereto by construction of ditches, or by any means, direct or indirect, whether through transfer of appurtenant water rights or otherwise; and/or filling, causing or permitting the filling in with earth or any other material or leveling, causing or permitting the leveling of any part or portion of said delineated wetland areas. This includes lakes, ponds, marshes, sloughs, oxbows, swales, swamps, potholes, and other wholly or partially water-covered areas, now existing or subject to recurrence through natural or man-made causes; provided, always, that the lands covered by this conveyance shall include any enlargements of said wetland areas resulting from normal or abnormal increased water.

2. Applying for any new water right appropriation (except for stock or domestic water uses that are not in excess of Idaho State exempt flow rates) that may negatively affect water use on fish and wildlife habitat delineated on Exhibit B; severing or attempting to sever water rights that are appurtenant to the Easement Lands, or changing or attempting to change their point of diversion, place of use, time of use, or type of use; or otherwise taking any action may negatively affect existing water use on the Easement Lands unless prior approval in writing is granted by the Service. To the extent allowed by applicable law, Grantor(s) will continue the historic water use on the Easement Lands in accordance with current practices. Appurtenant water shares may not be disposed of and must be used according to historical practices. Grantor(s) shall pay all annual costs associated with use of such shares.

3. Except as provided in Exhibit C, digging, excavating, plowing, disking, cutting, filling, burning, chemical applications removing or otherwise destroying the vegetative cover on the Easement Lands. Vegetation management activities that are determined by the Service to be beneficial to wildlife and their habitats, and compatible with the purposes of this Conservation Easement, may be permitted in writing by the Service.

4. Except as provided in Exhibit C, erecting, constructing or placing any structures, buildings or improvements including but not limited to dwellings, trailers, mobile homes or temporary living quarters, agricultural buildings, structures, water facilities, reservoirs and stock ponds.

5. Except as provided by Exhibit C and subject to all prior leases and outstanding mineral rights vested in third parties as of the effective date hereof, exploring for and/or developing or extracting Hydrocarbons and/or Minerals on or below the surface of the Easement Lands.

6. Dumping or disposing of refuse and/or any material which is harmful to wildlife or considered to contaminate soil, grasslands, groundwater, streams, lakes or wetlands.

7. Except as permitted by Exhibit C, constructing any new roads or granting of road right-of-way easements.

8. Except as permitted by Exhibit C, erecting, constructing, developing or placing any commercial energy facility on the Easement Lands, or using the property in support of a commercial energy facility or infrastructure. Examples of such energy facility include, but are not limited to, wind, solar, geothermal, nuclear, and ethanol. Nothing in this paragraph shall prevent the landowner, with the prior written approval of the Service, from non-commercially producing alternative energy (including wind, solar, and geothermal energy) for use on the Easement Lands.

9. Except as permitted by Exhibit C, conversion of existing vegetation to crops. The planting, overseeding or interseeding of non-native grasses, or other non-native plant species into existing areas of native vegetation is prohibited on the Easement Lands.

10. Establishment of high density animal confinement facilities, such as a feedlot or other livestock confinement facility such as Animal Feeding Operations (AFOs) or Concentrated Animal Feeding Operations (CAFOs) as defined by Federal, State and local laws as of the effective date of this Conservation Easement, or as of the date the facility is proposed if said definition is subsequently amended to be more restrictive.

EXHIBIT E: BASELINE REPORT