The Problem of Conservation Easements

The Washington Post recently published an article that repeated the old and flawed idea that ranching will “protect” the land and suggesting conservation easements are the solution to sprawl. https://www.washingtonpost.com/national/expanding-efforts-to-keep-cows-over-condos-are-protecting-land-across-the-west/2020/04/10/96ec2f80-79c6-11ea-9bee-c5bf9d2e3288_story.

If championing cows or hayfields is your conservation policy, one must rethink the strategy. Keep in mind that nearly all the development found along the Front Range in Colorado, Wasatch Front in Utah, the Phoenix area, around Boise, Bozeman or for that matter most of California’s major cities were all dominated by Ag use prior to transformation to housing tracts.

If California farms which are the most valuable agricultural lands in the nation can’t impede development than why would anyone believe lower value lands scattered about the West would prohibit development?

Not only is there abundant evidence that Ag does not prevent land development but in many cases, the environmental impacts of agriculture are often far more destructive than a rural subdivision. Keep in mind that a hayfield, cornfield or wheatfield is a biological desert consisting of a single or few species of plants that are removed annually. Your typical suburban housing tract with its landscaping has far more diversity and wildlife habitat than a similar acreage of Ag land.

With development pressures increasing on lands throughout the country, particularly in amenity-driven regions like the Rockies, Pacific Northwest, Northeast and elsewhere,  the use of conservation easements to preclude subdivisions and other developments have become the conservation method of choice for many non-profit and governmental organizations.

Conservation easements are an irrevocable transfer or conveyance of certain property rights associated with land ownership such as the right to subdivide to a non-profit or government entity usually in exchange for tax benefits, money, and/or for philanthropic reasons. Many people donate conservation easements because they want to ensure the landscape they love is still the same for generations into the future.

Conservation easements are voluntary, and only willing sellers are involved; therefore, easements have many supporters among groups such as farmers and ranchers who generally eschew land use restrictions such as zoning and/or planning. Conservation easements can also ensure that long term ecosystem services such as wildlife habitat and watershed protection are maintained and even enhanced. In some cases, conservation easements also provide public access for recreation and other purposes.

Conservation easements have protected millions of acres of valuable wildlife habitat, wetlands, lake, river, and ocean frontage from development, resource exploitation and more. Farmland conservation easements have protected some of the best soils and farmland in the country ensuring that they will be producing food into the future. Easements can also protect community character and structure. And by limiting development, easements save taxpayers money on public infrastructure and the other costs associated with unregulated sprawl.

PROBLEMS WITH EASEMENTS

In short, what’s there not to like about conservation easements? Many things, it turns out. Land trusts and public agencies are often quick to trumpet the additional acres they add to their portfolios each year but are less concerned with the quality of the lands they protect (not all open space is equally valuable) or the quality of the easements that are sold as a public benefit.

For instance, there are opportunity costs that come with easements since there is usually only a limited pot of money. What parcels didn’t get bought by outright fee acquisition because funds were expended on an easement instead?

Because conservation easements are nearly always celebrated as a public good, there is little scrutiny of the specific terms of easements, nor a public review of the costs/benefits of any particular land conservation easement.

The lack of public transparency in easement creation and maintenance is a potential long-term problem associated with them. Though the public has a financial stake in all conservation easements, it often has no one with direct responsibility to watch-dog for the public interest.

WHY SHOULD THE PUBLIC CARE?

Why should the public care? For one, it’s our money that is subsidizing easements. With few exceptions, nearly all conservation easements come with significant government-funded subsidies. These include, but are not limited to, a tax deduction for the individual(s) landowner, as well as reduced real estate property taxes for the landowner and estate. These losses in tax revenue are all made up by other citizens who must pay higher taxes to maintain services.

Increasingly with the larger conservation easements such as those involving big timber companies like Plum Creek and other large landowners, federal or state funds are being used to directly fund the easements. Yet because these funds are often funneled through second parties like land trusts, there is little public review of the agreements and/or cost-benefit analysis. Since the landowner has a direct stake in maximizing the value of his/her contribution, and thus tax breaks and/or payment, there is a tendency to inflate the conservation and land values.

Since many land trusts are driven by the desire to make a deal and claim yet another ranch, farm, or forest saved from development, they are also anxious to accommodate the landowner. Though appraisals are often done by an outside agent, everyone knows the deal won’t happen unless a positive evaluation is returned.  Due to the lack of oversight in the appraisal process and analysis of its real conservation value, nearly any land can receive an easement.

Second, one of the strengths of conservation easements heralded by supporters is their ability to adapt to nearly any situation and desire. However, calling such agreements “conservation easements” tells you nothing about what is being conserved. If a landowner wanted to limit strip mining on the land but wanted to clearcut it, such desires could be accommodated and be called a conservation easement. I admit that is an extreme example and not likely to occur, but many so-called conservation easements have very limited conservation value and might not be the best and/or least expensive mechanism for achieving similar results.

Because there are no uniform codes or standards, the proliferation of conservation easements presents a major legal challenge to future generations since nearly every term could be subject to different legal interpretations, making monitoring and enforcement difficult. With thousands of land trusts and organizations holding easements across the country, what will happen when those organizations fold or disappear? Who will monitor and enforce easements over multi-generational time scales?

In addition, a long-term strategic plan is missing from many acquisitions. One can easily make the general argument that protecting all open space is important. However, since funds are limited, it’s critical that acquisitions serve some strategic long-term landscape plan. Some organizations have undertaken strategic planning to address these concerns and have identified ecologically valuable lands and landscape linkages and use such plans to target specific regions for their work. However, most land trusts do not have the funds or the capacity to do such planning, so land conservation becomes opportunistic instead of strategic.

There is a further problem associated with conservation easements. In order to qualify for IRS tax deductions, a property must possess “significant conservation value.” Because groups often gain funding based at least partially on how successful they are in obtaining new easements, there is a tendency to go for acres whether or not the lands in question serve any or little real conservation value. Trusts and organizations like the Nature Conservancy are under a lot of pressure to justify nearly any easement as “ecologically” important. A friend of mine who once worked as a scientist with the Nature Conservancy (TNC) lost his job when he repeatedly refused to sign off on documents claiming ranchlands that were ecologically valuable when they had no significant biological or other attributes.

In an effort to inflate their numbers, TNC also counts public grazing allotment acreage grazed by livestock-associated with ranches it holds as “saved” acres, even though these public lands cannot be developed as subdivisions, and the single biggest ecological impact associated with many of these lands is the degradation resulting from livestock grazing. Thus, the Utah TNC claims to have “protected” 900,000 acres—most of which is public land that cannot and will never be subdivided.

CONDOS ARE NOT NECESSARILY WORSE THAN COWS

Depending on the terms of the easement, conservation purposes may only marginally be served. The unspoken assumption behind most conservation easements is that all rural subdivisions are worse for the land than on-going resource exploitation. Many conservation easements explicitly call for the continuation of the “working landscape” as if this somehow implicitly “conserves” ecosystem values. However, from a purely ecological perspective (which is often lacking in any analysis), on-going land uses may be worse than a subdivision.

Preservation of open space is one benefit of most conservation easements, but open space does not necessarily equate with conservation. For instance, open space is not the same as good wildlife habitat. A wheat field stretching to the horizon contains a lot of open space, but it has far lower diversity of habitat and wildlife value than most subdivisions or even golf courses. Many on-going land uses are extremely harmful to natural systems, degrade ecosystem values, and are among the major factors contributing to the urgency for conserving land in the first place.

Of course, the intensity of use and even how the land is exploited makes a big difference in its relative ecological value to the community.  A subdivision with a few homes concentrated in a small area surrounded by a large expanse of natural habitat might be better than a wheat field or a cornfield. A cornfield or other similarly intensively farmed crop is an ecological wasteland consisting of a monoculture, regularly disturbed, often with on-going soil erosion, water pollution of both surface and ground water, and the application of significant amounts of insecticides, herbicides, and so on.

Ranching is often not much better than cropped land. Ranches typically replace native meadows with hayfields of exotic grasses and preempt native wildlife with exotic animals. Livestock tramples riparian areas, while streams are dewatered for irrigation.  Livestock pollutes water and is a major source of non-point water pollution. Predators are killed, and “pests” like prairie dogs are eradicated. Livestock spreads weeds, destroys soil bio-crusts, and so on. Given the much larger amount of land affected by the livestock industry, its overall ecological impacts vastly exceed the cumulative damage done by subdivisions and sprawl.

Plus under some conservation easements, on-going land exploitation is often permitted, or in rare cases, even mandated. For instance, a conservation easement placed on forested lands in northeast Vermont several years ago—called the “forever logging” clause by critics– the easement requires the landowner to cut timber in perpetuity. Other easements guarantee that farming and/or ranching will continue forever—both have huge ecological impacts.

This is not to suggest that most subdivisions are good and even more desirable than a worked over farm, ranch or forest. My point is that working the land isn’t necessarily the best way to conserve its ecological values as commonly assumed.

GREEN WASHING

Another critique I have of conservation easements is that groups working on easements with private landowners are frequently eviscerated of any desire/ability to criticize destructive land use practices. Land trusts need to persuade landowners to transfer to them development or other rights, and logically they are not going to jeopardize such a relationship by being openly critical of industry practices.

Land trusts almost uniformly try to put a positive spin upon on-going land uses that are actually ecologically destructive, green-washing activities like ranching, farming and logging, ultimately undermining efforts to change, challenge or abolish harmful practices. It is more than coincidence that a rancher or logger who has agreed to a conservation easement suddenly becomes a “steward” of the land featured in the land trust and/or organizational magazine or newsletter even though on-going activities like farming, ranching or logging may not have changed a bit.

Thus, groups like the Nature Conservancy, Trust for Public Lands, and many other organizations sing the praises of the working landscape even though, in many cases, the working landscape destroys or degrades the very natural values they espouse an interest in protecting.

UNDERMINING PUBLIC SUPPORT FOR LAND ACQUISITION

Conservation easements, while a very useful tool in the right situation, can and do undermine public support for outright fee purchase of lands. Because easements are a “hidden” tax and not a line item purchase like a fee acquisition, it is easier to slip it under the radar screen of opponents.

In addition, many public agencies reacting to the often-hostile opposition to public acquisition of land from private property proponents find conservation easements easier to promote and complete. Nevertheless, the long-term public benefit is not necessarily being served by such tactics.

Another problem with conservation easements is they are used to avoid more politically volatile conservation strategies like planning and zoning. Though, conservation easements are a useful complement to land use planning and zoning, it should not be used in lieu of good land use planning and/or outright fee purchase where either and/or both serve better long-term public interests.

Again, because conservation easements are arranged outside of public purview and discussion, with little public transparency, weighing whether fee acquisition vs conservation easement would better serve public interest is seldom part of a public debate.

In some cases, land trusts, and others involved in negotiating conservation easements pay nearly as much for a conservation easement as it would costs for outright fee acquisition, but with much more limited public benefits.

Again, because there is often no public discussion about the costs and benefits of a particular easement, the public may not be getting the best bang for its buck. In many cases, conservation easements often cover lands of less conservation value and/or may permit many ecologically destructive practices like farming, logging, mining, ranching and other “working” landscape uses to continue. In such instances, it might be a better expenditure of public funds if a smaller, but more focused acreage was purchased with the same amount of money, not only protecting the majority of conservation concerns but in addition providing public access and oversight.

CONSERVATION EASEMENTS STILL A GOOD TOOL

Despite all the criticisms I’ve leveled about conservation easements, I still believe they are a useful tool for preserving and conserving ecological values. In many cases, they are the best way to preserve open space, wildlife habitat, and public values. However, if we are going to get the greatest value for our dollars, we need more public transparency and review of easements terms, more uniformity in legal terms and enforcement, and better analysis of the costs and benefits by agencies not directly involved in negotiating the easements to ensure that the public is indeed getting real conservation value for the money it’s putting into conservation easements.

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