Conservation easements are proven to be a wise way for some landowners to preserve private property from development by placing restrictions on land use for perpetuity. The conservation easement wording sounds as though any land put into such an easement cannot be used for crop production, but that is not completely true.
Land that should be farmed in the very best management practices forever could qualify for a conservation easement under the policies of many, but not all, land trusts. The land might be a buffer to other land next to rivers, lakes, oceans, forests, grasslands or even deserts. Additionally, farmland next to facilities where no development or limited access is preferred can qualify as a form of conservation easement.
Conservation easements in the U.S. are normally managed by land trusts, most of which are non-profit charitable organizations. The world’s biggest organization doing conservation easements around the world is The Nature Conservancy, and, therefore, the most publicity about conservation easements is related to the preservation of land threatened to be destroyed or developed if not left in a natural state.
Even though establishing conservation easements have been recognized as good programs by Congress, not all states have laws allowing non-profit land trusts for oversight and establishing conservation easements. For example, Missouri does not have laws encouraging such trusts while across its western border Kansas does.
KANSAS LAND TRUST EXAMPLE
A prime example of an outwardly appearing well-organized land trust is the Kansas Land Trust (KLT). Its executive director is Ginny Moore. To date, KLT has 46 pieces of land that it put into conversation easements and now oversees that the land use restrictions for the conservation easement are followed.
The main fact missed by some is that a conservation easement does not transfer ownership of the land. The original landowner continues to own the land and can sell it, but forever after the conservation easement is established, the land has to be maintained per legal restrictions outlined in the easement.
Moore explained some financial aspects. “If a landowner puts a conservation easement on 100 acres of property, then essentially what they are doing is restricting some of the activities that can take place on that property, and usually it is development. When that happens, generally the value of that property is decreased because when the landowner goes to sell the land with the conservation easement, which lasts forever and ever, the land probably isn’t going to sell for as high a price as without a conservation easement,” she said.
“When we have a property owner who is interested in pursuing a conservation easement what we do is get an appraisal of that property without an easement on it from a professional appraiser, who specializes in an appraisal for conservation easements,” she went on to explain.
The specific restrictions on the use of the land are also studied by the appraiser. The appraiser evaluates whether, and how much, the conservation easement restrictions would reduce the value of the land. For explanation’s sake, 100 acres appraised without an easement on it might be worth $150,000 but with the easement in place the appraised value might be $100,000; therefore, the easement has reduced the value of the land by $50,000.
That difference in appraised value can then come into play in more than one way. The $50,000 difference can be a payment to the landowner in some cases or if the landowner donates the land, the landowner might receive a state tax credit in very few cases, but more likely than not, the easement donation could be used as a federal tax deduction, if that federal tax incentive continues.
FEDERAL TAX CREDIT EXPIRING
Throughout the U.S., conservation easements have been encouraged by a federal tax incentive provided to landowners who donate land for conservation easements. But the tax incentive will expire at the end of the year unless Congress reauthorizes it by passing H.R. 1964 and S. 339, the House and Senate version of bills. The tax incentive has bipartisan sponsorship in the House as it originally was introduced with 260 co-sponsors. Over 65 national organizations, including the Farm Bureau Federation, support this legislation. With all the budget discussions, the fate of the legislation appears to be in limbo.
The tax incentive provisions that are in place until the end of the year and up for renewal include allowing farmers and ranchers to deduct up to 100 percent of their income and provides the number of years for which the deduction can take place to span 16 years.
A lack of tax incentive will affect the future of more land going into conservation easements, but will not have a major affect on current land in easements under land trusts of which at least 1,700 community-based land trusts exist. That is the number of members in the Land Trust Alliance umbrella organization that promotes voluntary private land conservation.
Some landowners may be able to take advantage of programs that provide cash payments for conservation easements. One example is how the KLT has been working in partnership with the U.S. Army at Fort Riley.
“There are a number of pieces of property around the military base that we have put conservation easements on. We are working with the Army because they want to build a buffer around the military base at Fort Riley. It works to their advantage in a number of ways. The Army is interested in preserving tall grass prairie and the wildlife it supports on and around the base. Also, they do training and testing at that military base installation. So, if there was development close in around the base, it could do things like interrupt their radar, produce light pollution that interferes with night training and result in roads bringing people in close to the perimeter of the base,” Moore said.
“What the Army is doing is providing money to the Kansas Land Trust to purchase a conservation easement from individual landowners. That money is still available and we are using it,” she said.
The Army provides funds as cash to the landowners via the KLT, in an amount equal to the decrease in the value of the land when a conservation easement is placed on it. In establishing every conservation easement, it always is the hope of the KLT that money will be donated by those putting their land into an easement for the eternal enforcement of restrictions in the easements.
Another government money program has been the Farm and Ranchland Protection Program (FRPP). Some of that money is still available until the end of the year, from the most recent reports.
“One of our challenges with this program is that the FRPP program requires us to match with local funds. So, we have to be able to go out and raise money locally to match those federal dollars,” Moore said.
The idea behind the FRPP is in its name. It is to protect farms and ranches and to allow that land to be profitably used for agricultural purposes forever. Money provided under this program but also donated for any enforcement of conservation easement restrictions is to make sure that land is properly maintained, not just left to go wild with invasive weeds and brush.
“If you let land sit, particularly after it has been disturbed sometime in the past, you get a lot of invasive species on that land and ‘junk’ trees,” Moore noted.
The FRPP can also provide a landowner with some money to maintain the property so the owner can take out those invasive plants, junk trees and brush. For cattle ranchers, that is a good thing because the invasive plants and brush reduce the carrying capacity of grazing land.
As noted, professional appraisers have a key role to play in conservation easements, but farm managers can also have a significant role. Because the land must be operated within the easement restrictions and the landowner is still operating a farm or ranch, it is important that best management practices be followed whether it is farmland or ranchland.
Farm managers can also be valuable in working with landowners when going through the process of placing land into a conservation easement. There are financial considerations that must work out, and there must be a land trust interested in preserving the property. The money necessary to keep property in compliance for perpetuity has to be available, and the land should have a distinct value to be preserved.
Besides working with Fort Riley, the KLT has been focusing attention on the Flint Hills area because it is home to some of the last tall grass prairies to be found anywhere in North America. Less than 4 percent of tall grass prairie remains, with almost 80 percent of what is left in the world lying within the Flint Hills. Another area of focus has been the Kansas River area where there are prime farmland soils along the river as well as riparian forest land.