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Magazine Articles

Easements 101

December/January 2014

Across the country and around the world, private landowners armed with conservation easements have become a powerful and growing force for protecting nature.

In 1961, a developer announced plans to construct a marina on the 6-acre site of the Gallup Salt Marsh in New London, Connecticut. The marsh sits at an inland point of Mystic Bay, an estuary that provides valuable wetland habitat in a busy seaboard. But a rare transaction—well, rare at the time—took place before builders sank a single piling. The Nature Conservancy secured an easement on the marsh to safeguard its future as a natural area and, in the process, introduced a powerful new tool for the organization to protect private lands.

In the half century since, the Conservancy has protected nearly 6.6 million acres using conservation easements. Although that is a small portion of the more than 119 million acres the Conservancy has helped preserve since it was founded in 1951, the share of land protected by easements has grown rapidly. In 2013, easements accounted for more than half the land area the Conservancy helped protect.

Easements are legal agreements by which landowners permanently sign away certain property rights—typically the ability to subdivide their land or construct new buildings on it. The other party to the agreement, the easement holder, is responsible for monitoring and enforcement, which includes visiting the property and defending the easement if compliance issues arise.

“A conservation easement is a partnership between the easement holder and the property owner,” says Philip Tabas, a Conservancy senior advisor who has counseled on hundreds of easement deals. It’s a partnership that benefits both parties. Landowners keep ownership of the land, can continue to live and work on it, and, in exchange for giving up development rights, may qualify for federal or state tax incentives and reduced local property taxes. Conservation groups protect habitat without paying a property’s full price tag. And once in place, a donated easement provides the public with conservation protection in perpetuity.

While the Conservancy piloted its first easement in 1961, the tactic didn’t gain much momentum until 1976, when Congress reworked the federal tax code to allow landowners to report easements as charitable deductions to their federal income tax. (Typically, the deduction amount is the difference between the appraised market value of the land with and without the easement in place.) In the following year alone, the Conservancy protected more land with easements than in the previous 15 years combined. A broad analysis of the Conservancy’s transactions between 1954 and 2003, published in the Public Library of Science’s online journal, PLOS ONE, found that easements grew more and more popular at the Conservancy each year, accounting for 70 percent of the land protected through traditional transactions in 2003. (Outright land
purchases made up the other 30 percent that year and accounted for half the money spent on habitat protection.)


“A conservation easement is a partnership between the easement holder and the property owner."

 

As the nation’s largest nonprofit easement holder, the Conservancy leads a trend that can be seen across the country: Land trusts are increasingly using easements as a conservation strategy. Between 2000 and 2005, state and local trusts increased the amount of land protected through easements by 148 percent, from about 2.5 million acres to more than 6.2 million, according to the Land Trust Alliance. By 2010, that number jumped again, to nearly 9 million acres.

Today, state and local land trusts, government agencies, and national conservation groups use conservation easements to protect an estimated 40 million acres of private land in the United States, with most of that area having been secured in just the past few decades. While this kind of private land conservation is an increasingly important tool for protecting lands and building private support for conservation, it is not replacing more  traditional strategies. In the United States alone there are nearly 650 million acres of federally protected lands, such as national parks and wildlife refuges.

Other countries are adapting easements to their landscapes as well. The Conservancy has helped pioneer the use of these legal agreements in Canada, Latin America and, most recently, the Asia-Pacific region, which saw its first easement this year in Micronesia. Internationally, the Conservancy has protected nearly 110,000 acres through conservation easement transactions.
 
As they have become more popular, the agreements have evolved. Early easements primarily shielded landscapes from development and other types of human impact; today, they are increasingly being tailored to specific conservation objectives. For instance, whereas an early easement may have prohibited herbicide use, a newer easement might instead include a management plan that more clearly articulates a conservation objective—such as preserving native plant species—and allows more flexibility in the way that goal is achieved, potentially including herbicides to combat invasive species.

Newer easements also might consider compatible uses. By investing more research in the conservation objective, the Conservancy can help determine whether an ecosystem can tolerate human uses, such as low-impact logging, and may include provisions for certain sustainable practices.

“Fifty years ago, we thought of easements as simply freezing the landscape,” says Tabas. “There’s a lot of potential for innovation as we learn more about ecological processes and what it really means to protect habitat.”

 
South Dakota’s Prairies


Preserving a Way of Life for Generations

The Northern Plains’ prairie pothole ecosystem, sometimes called America’s duck factory, “is one of the most diverse wetland-grassland ecosystems in the world,” says Mary Miller, who manages the Conservancy’s 7,800-acre Samuel H. Ordway Jr. Memorial Preserve in South Dakota.

For generations, the region’s rocky soil sustained a ranching culture, where cattle grazed on native grasses and migratory birds foraged in the wetlands. But rising prices for corn and soybeans have driven many landowners to plow the grass and plant crops.

To protect the prairie and its current population of breeding waterfowl, the Conservancy, Ducks Unlimited, the Northern Prairies Land Trust and other conservation organizations have joined together to support the U.S. Fish and Wildlife Service’s Dakota Grassland Conservation Area. The partnership aims to preserve 1.7 million acres of grasslands and 240,000 acres of wetlands in South Dakota and North Dakota with conservation easements. In South Dakota, the Conservancy is helping to sign up landowners for the federally held easements.

For many ranchers, the two-year-old program is a way to preserve their own way of life on the prairie. Cash from an easement sale or a reduced tax burden can help pay off a mortgage, lowering the overhead of a ranch so the rancher doesn’t have to raise crops to make up the difference. And the easement keeps the land intact for the next generation of ranchers.

“It’s a tool to bring the next generation into the operation,” says South Dakota rancher and farmer Jim Faulstich. Easements, he says, have ensured his daughter and son-in-law a place on the land.

 

 THE SKY ISlands of west texas

Fostering Conservation Buyers

Frank Deaderick fell in love with the Davis Mountains in West Texas as a child. The mountains here, known as sky islands, rise thousands of feet from the Chihuahuan Desert, providing a cool oasis of ponderosa pine and scattered aspen stands.

The Conservancy had been protecting and purchasing property in the Davis Mountains for several years when a 39,000-acre property that included the summit of Mount Livermore—the highest point in the Davis Mountains—came on the market. The Conservancy’s team in Texas knew they couldn’t afford to buy the whole ranch, but came up with a plan to purchase 32,413 acres of it.

The team carved off a chunk of the land to create an 11,803-acre preserve protecting the sky-island habitat at the summit. Then they placed easements on the rest of the land, divided it into six smaller parcels and sold the parcels to conservation-minded individuals to pay for the entire purchase. Through a combination of purchases and easement donations, the Conservancy has subsequently expanded the Davis Mountains Preserve to 33,075 acres and conserved 69,600 acres of privately owned land with 20 easements.

“The deal was innovative not just because of the conservation buyer strategy,” says Jeff Francell, the Conservancy’s associate director of land protection in Texas, “but because of the scale of the project, which allowed the Davis Mountains to become the largest privately protected area in the state.”

And for Deaderick, who purchased land and placed it in a conservation easement, it was a chance to have a hand in saving a cherished place. “This is the last frontier of Texas,” he says. “To preserve that for my family and for everyone was very important to me.”


 
Timberland in Northern California


Making Room for Low-Impact Logging

Ten years ago, some people questioned whether the timberland in Northern California’s Garcia River watershed had a future as a forest or good habitat for endangered salmon. Heavily logged for more than 50 years, the damaged landscape seemed destined to become a vineyard or housing development.

But when timber company Coastal Forestlands Ltd. decided to sell the land, the Conservancy and The Conservation Fund came up with an idea to restore the forest. Chris Kelly, the Fund’s California program director, says his  organization saw a way to arrest fragmentation of the landscape, restore salmon and trout habitat, and reduce carbon in the atmosphere while sustaining a low-impact local logging economy. Kelly and his team partnered
with the Conservancy to test a new, multiple-benefit conservation model.

The Conservation Fund bought the Garcia River forest property and held it, recouping part of the purchase price by selling a 23,780-acre easement to the Conservancy. The Conservancy then helped The Conservation Fund create a conservation plan for the property.

Since the purchase 10 years ago, the forest’s rebounding stands of redwood and Douglas fir have stored an average of 175,000 tons of carbon per year, earning the fund payments from California’s new carbon market. The onservation Fund plans to hold the property while it restores the forest. Then it may resell the land to a timber company—with the easement in place. The easement sets aside a third of the land as a forest reserve; on the rest of the land it calls for a management plan that will allow limited logging and ensure that future owners protect both the forest and the stream habitat.