What are conservation easements? Texas Land Trust Council Executive Officer Lori Olson took a shot at defining the term.
“A conservation easement is a voluntary, written agreement between a landowner and the ‘holder’ of the conservation easement under which a landowner voluntarily restricts certain uses of the property to protect its natural, productive or cultural features,” Olson told Federal Newswire.
“Conservation easements provide many benefits to both the landowner and for the public good,” she added. “Conservation easements on private lands can help safeguard natural resources for generations to come, providing valuable ecological and economic benefits such as water quality and quantity protection, wildlife habitat and agricultural production.”
Texas Land Trust Council Executive Officer Lori Olson.
| Texas Land Trust Council
Conservation easements sound beneficial and uncontroversial, but have become part of an ongoing debate about what lands are preserved and protected and why.
Depending on state laws, the easement agreement, or the objective of the easement, public access to eased land may be permitted, restricted, or prohibited.
Some individuals may question why public funds are employed to establish easements on land that is solely accessible to the landowner. The answer is straightforward. These lands are not being conserved for recreational or educational purposes. Rather, they frequently protect productive farmland or serve as habitats for flora and fauna.
Public funds are utilized to preserve these lands, because despite the public’s inability to access them, they still receive indirect economic advantages from these private easements.
Following President Biden’s declaration to conserve a minimum of 30% of the nation's lands and waters by 2030, a number of states, tribes, local governments, and private sector leaders have made headway in advancing the initiative by devising their special strategies to preserve, link and rejuvenate additional lands and waters.
“Released by the U.S. Departments of the Interior, Agriculture and Commerce, and the White House Council on Environmental Quality, the report outlines the collective work to pursue the first-ever national conservation goal established by a president, a goal of conserving at least 30% of U.S. lands and waters by 2030,” the White House said.
“The federal actions and activities described in the progress report align with the America the Beautiful initiative’s guiding principles, which include commitments to honor the nation’s conservation traditions, private property rights, the sovereignty of Tribal Nations, and the values and priorities of local communities," it added.
Critics contend that achieving the 30 by 30 target, under the most stringent definition, would necessitate the conservation of massive areas of land, meaning hundreds of millions of acres.
Sen. Pete Ricketts (R-Neb.), who formerly served as governor of the Cornhusker State, held a series of town halls in 2021 after the Biden administration’s announcement, criticizing what he continues to call 30 by 30.
Ricketts told farmers to look out for unfamiliar clauses in their U.S. Department of Agriculture contracts and urged county officials to consider rejecting conservation easements if they went too far in locking up land.
“The U.S. News and World Report ranked Nebraska as the sixth-best state in the nation for the quality of our natural environment," Ricketts said. "By contrast, the state of Delaware, which President Biden represented as a U.S. senator from 1973 to 2009, was sixth-worst overall, and No. 47 for pollution.”
Conservative activists suggest the initiative is an attempt to seize private land and restrict public access to federal lands. In a March 2021 letter to President Biden, more than 60 members of the Congressional Western Caucus expressed their fear that the 30 by 30 initiative may serve as a means to erode private property rights, bypass the multiple-use directive and further restrict land usage.
Olson said it’s important to realize landowners do not forfeit all their rights to the land when an easement agreement is made.
“With a conservation easement, the landowner retains legal title to the property and determines the types of land uses to continue and those to restrict,” she said. “Many rights come with owning property, including the rights to manage resources, change use, subdivide or develop. With a conservation easement, a landowner limits one or more of these rights."
"For example," she added, "a landowner donating a conservation easement could choose to limit the right to develop a property but keep the rights to build a house, raise cattle and grow crops.”
However, Olson said these easements usually cannot be reversed.
“Because conservation easements qualifying for federal tax benefits are required to be permanent, landowners should assume that it will not be possible to terminate a conservation easement,” she said.
However, Olson noted, it could be possible to amend a conservation easement if certain criteria are met, such as if the IRS recognized “conservation purposes” of the conservation easement are not affected, if the amendment has a net positive or neutral impact on the conservation values protected by the easement or if neither the landowner, nor any other person, receives a financial benefit from the amendment.
Such an easement usually has no expiration date and cannot be renegotiated or withdrawn by the landowner, she explained.
“Most conservation easements are perpetual, as this provides for a lasting conservation outcomes,” Olson said. “As stated earlier, perpetuity is required by the IRS in order for a landowner to receive a tax deduction for placing a conservation easement on their land. Most states that purchase conservation easements require perpetuity, as well, since the landowner is getting paid appraised value for those development rights."
