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The Real Costs of Conservation Easements: The History

Written by Rick Buchanan

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Taxpayers are paying vast sums of money for the ability of some landowners to voluntarily give property rights to another entity.

Rural home ownership

This begs the question “Why am I paying for someone else’s charity”? After reading the following discussion of conservation easements, you should be asking your legislative representatives their reasoning behind this decision, since they have made it for you. If they think this is such a great use of your money, there should be good reasons for their decision. But before you call, perhaps some background information germane to the discussion would be helpful.

As taxpayers, many things for which we are asked to pay, that originate from our trusted governmental representatives, are based in altruistic motives that sound “real good”. And, of course, we naturally assume our legislators are always looking out for our best interests. In fact if you take the opportunity to know your legislators you will find most really do go about their jobs earnestly trying to do what is right for all of us. Really!

However, in today’s world, the ship of state is not a slow moving luxury steamer. It is more like a speedboat in a regatta, skimming along the water barely touching the surface. It is easy to see why some of our best legislators end up steering off course. It is understandable that they may take a feel-good issue at face value and not look below the surface to analyze the long range effects of the policies they enact.

Since many of us are riding in a similar speedboat, barely glimpsing the waves of information flying by, I offer you a bit of research on one such wave: The tidal wave of billions of dollars spent each year on conservation easements that most of us know little about, though we might think we do.

This study is offered with only one request. If you care enough to know where these tax dollars are going, please do your own research. Not only am I suggesting you open the links provided in this series of articles but also go online where there are volumes of further information. I you have something to add, or see something you disagree with, please voice your opinion in the comment section given below. The money invested in conservation deserves conversation, so chime in.

My findings are presented in three parts:

Conservation Easements - The History
Conservation Easements - The Application
Conservation Easements - Winners and Losers of Conservation Benefaction.

Part One: Conservation Easements - The History

The concept of a conservation easement, which began as an excellent way to preserve natural resources and “save the farm” of struggling land-rich, cash-poor farmers was actually a great idea. In the hands of the private sector the voluntary actions of landowners and the charitable gifts of the wealthy all working to enhance the use of conservation easements could have created a very worthwhile, some would even say necessary, program to conserve our natural resources. However, politicians, being ever anxious to please prospective voters, have never seen a good program that could not be enhanced by using other people’s money to purchase favor. But I digress. First the basics should be discussed.

A conservation easement is initiated with the donation of a part of the “bundle of rights” that are normally accepted as part of ownership of all property. This benefaction, held by a public or private land conservation organization, creates an encumbrance or “deed restriction” on the property. The encumbrances vary, but usually fall into some category of the loss of land use through restrictions on crop choices, development rights, building and/or demolition. This then allows the easement holder to conduct inspections of the property to verify compliance to the deed restrictions on the property.

It should be noted here that the overwhelming majority of easements are initiated only when deed restrictions are agreed to in perpetuity. There are a very few that may be agreed to for set blocks of time, but any tax breaks given through the easement agreement would automatically be due if, at the end of the agreed upon time, all rights are reverted back to the land owner. There is also the possibility of other penalties associated with ending these limited agreements.

In a look back to the beginning of conservation easements Harvard researcher Zachary Bray explains that until the 1950s, conservation easements were used only sporadically and were held exclusively by governmental organizations, like the National Park Service. The recent growth in the number of private land trusts and the amount of land protected by conservation easements is primarily due to changes in the tax code.

By 1975, sixteen states had statutes enabling private acquisition and retention of conservation easements. In 1981, the Uniform Conservation Easement Act (“UCEA”) was drafted and designed to enable “private parties to enter into consensual arrangements with charitable organizations or governmental bodies to protect land and buildings without the encumbrance of certain potential common law impediments.”

In 1990, private land trusts held conservation easements covering 450,000 acres. By 1994, private land trusts protected more land through conservation easements than fee ownership. From 1994 to 1998, the amount of land protected by privately held conservation easements nearly doubled, then nearly doubled again from 1998 to 2000, and then more than doubled again from 2000 to 2005. The total of private (non-governmental) easements as of 2012 is more than 6,400,000 acres and still climbing.

Along with private easements, government also holds a large number of easements. Many, if not most of the easements held are still owned by private individuals. These easements are controlled by the state, local, or federal governmental agency which holds the rights of the easement. As of 2012 the total acreage under governmental easements is 11,405,000.

Of the approximately 17.8 million acres under easement today, 17 million acres of land are owned by entities other than governmental agencies. You can find all of these statistics here.

So what has led to this meteoric rise in land “donations” into the easement program?

Is it the altruistic nature of the landowners? Is it their deep concern for our natural lands, watersheds and wildlife or the protection of magnificent view sheds?

Or is it the burgeoning amount of tax breaks and the accompanying transferability of these tax credits? We will begin to unravel the truth in the next segment: Conservation Easements - The Application

 Rick Buchanan | Fauquier Free Citizen

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