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www.TallTimbers.org
Vol. 2 | No. 2 | June 2009   

 

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Conservation Easements Frequently Asked Questions
By Kevin McGorty and Lane Green

Tall Timbers began holding donated conservation easements through its land conservancy in 1992. Today, it is one of the largest regional land trusts in the nation in acres conserved, holding 77 easements on 110,000 acres of land in north Florida and southwest Georgia. This year, Tall Timbers was awarded national accreditation by the Land Trust Accreditation Commission. As such, the Commission recognizes Tall Timbers as a land trust that has “demonstrated their commitment to national quality standards for nonprofit management and land conservation.” 

As conservation easements are becoming a popular method of keeping land in family ownership and rural use, we are often asked by landowners to clarify what easements are and what they allow and don’t allow. Below are some of the questions we have received. The list is not exhaustive. For more information, please visit our website and feel free to contact us or call (850) 893-4153 x 228. Because conservation easements are legal and financial transactions, Tall Timbers urges landowners who are considering an easement on their land to consult with financial and legal advisors.

1. What are conservation easements?

Conservation easements are voluntary legal agreements between a landowner and a land trust or government entity. Conservation easements are site-specific documents that help landowners ensure that important conservation values on their property are protected forever, while keeping the property in private ownership and productive use. Easements contain permanent restrictions on the use or development of the land.  These restrictions stay with the property even if ownership changes.

2. Why would landowners place their land under conservation easement? What are the benefits?

First and foremost, landowners love their land. They want to keep using their land for productive forestry, agriculture, or simply to enjoy its recreational and open space values. They also want to protect it from inappropriate development while keeping their private ownership of the property. The donation of a conservation easement may provide substantial tax benefits.   

The Conlins

Landowners donate conservation easements because they love their land and they want to see it protected. “We want our children and grandchildren to have the same opportunities to watch wood storks settle on the shore, follow a pileated woodpecker pair through the trees, perhaps glimpse deer stepping down their paths…”
— Mary and Joseph Conlin

Basically, a landowner is giving up some of their development rights, resulting in the lowering of the value of the property. This reduction of property value has tax benefits for both income and estate taxes. These tax incentives can be very beneficial to landowners in helping to keep their land intact and in transferring ownership. The value of the easement is determined by a qualified appraisal demonstrating the difference in the fair market value of the property before and after the easement restrictions are put in place. These tax benefits significantly reduce the risk that the easement property will have to be broken up and/or sold to meet tax obligations, thus protecting the natural resources and traditional and compatible uses of the property for future generations.  In addition to the federal tax benefits, both Georgia and Florida have state incentives for donated conservation easements.

Federal Income Tax Benefits for the Donation of Conservation Lands
Expanded incentives for tax years 2008-2009 allow a deduction of up to 50% of the adjusted gross income (AGI) for donations of qualifying conservation easements that can be used over 16 years. Qualifying farmers and ranchers (tax payers who earn more than 50% of their income from farming or ranching) can deduct up to 100% AGI. For more information on federal income tax benefits, click here.

Estate Tax Benefits

  • Donating a conservation easement will likely reduce the value of an estate, and thereby reduce or even eliminate estate taxes for heirs while maintaining the property;
  • In a large estate, as much as 55% of the property value is taxed and payable to the federal government within 9 months of death. A conservation easement may help avoid a forced sale of land to pay taxes and keep the property in family ownership and management.

Georgia State Income Tax Benefits for the Donation of Conservation Land (fee title or easements)

  • Donating a conservation easement meeting state conservation purposes qualifies donors for a state income tax credit up to $250,000 (individual), $500,000 (corporation), or $1 million (partnership);
  • The donor has 10 years to use the credit. The law provides for a credit on a Georgia state income tax of 25% of the donated value for qualifying lands;
  • Applications for the tax credit can be found online at www.glcp.org and are made through the Department of Natural Resources.

Florida Property Tax Benefits
Florida Amendment 4

Starting in 2010, Florida landowners can receive a 100 percent ad valorem tax exemption for land permanently dedicated for conservation use and used exclusively for conservation purposes. Income can be generated from the management of the property so long as the income is used to implement a management plan. A 50% exemption from ad valorem taxation is available to landowners whose commercial use of the property is not related to implementation of the management plan. (See related article in this E-News issue.) 

3. If the original donor does not use their tax incentives, does that negate the ability to enforce the easement?

No.

4. Can I sell my property if under easement?

Yes. The owner who grants the easement (grantor) retains title to the property and can sell it or give it to others. The conservation is recorded as a perpetual easement on the property, and a purchaser takes title to the property subject to the restrictions and conditions of the conservation easement.

5. What are the requirements to qualify for the federal tax benefits?

Under the Internal Revenue Code §170(h), the conservation easement must be in perpetuity, provide a public benefit, and be granted exclusively for conservation purposes. Conservation purposes include the following:

a. The protection of relatively natural habitats of fish, wildlife, or plants, and similar ecosystems;

b. The preservation of open space, including farmland and forestland, for scenic enjoyment of the general public or pursuant to a clearly delineated governmental conservation policy that will yield a significant public benefit;

c. The preservation of historically important land or a certified historic structure;

d. The preservation of land for public outdoor recreation or education

6. Do Tall Timbers’ easements emphasize one purpose over another?

Tall Timbers specializes in the conservation of working lands that have multiple values. Our easements protect natural habitats, open space associated with forestlands and farmlands, and the preservation of historic structures. To date, we hold no easements for the preservation of land for public outdoor recreation or education. Of the 110,000 acres under easement with Tall Timbers, 95,000 acres are on lands managed as prime quail hunting properties. Those properties have a long tradition of using selective timber harvesting, prescribed burning, and other stewardship practices that have conserved the natural character and heritage of the Red Hills and greater Albany regions. Some 68% of Tall Timbers’ easements have multiple conservation purposes reflecting the tradition of protecting natural habitat and open space while continuing productive forestry and agricultural use.  

Tall Timbers specializes in the conservation of working lands that have multiple values, including the use of land for game bird hunting.

7. Is the legal easement document broad and the conservation management plan very detailed?

Unlike many land trusts that include detailed management provisions in their legal easements, Tall Timbers develops a separate conservation management plan in close consultation with the landowner (and/or landowner representatives). The conservation management plan establishes broad guidelines to protect those conservation values identified in the easement. Typically, the plan includes timber harvest goals and standards, management guidelines for Special Natural Areas (SNAs), a prescribed burning program, and other management practices. The plan does not supplant the land management responsibilities and rights of the landowner. A more flexible document than the legal easement, the plan recognizes that changes will occur to the property over time, and therefore management changes will be needed or desired requiring modification of the plan without interfering with the legal easement. It also recognizes the intrinsic importance of the property’s economic sustainability and traditional land uses. For a copy of Tall Timbers Model Conservation Management Plan, please contact us or call (850) 893-4153 x 228.

8. Does granting an easement require public access to my property?

No. Only if an easement’s conservation purpose is for the preservation of land for public outdoor recreation or education is public access required.  Tall Timbers’ easements do not fall in that category.  

9. Will Tall Timbers have the right to conduct research or educational tours on my property without my permission?

No

10. If my land is under easement, can I lease my land for hunting, farming, and forestry even if those activities bring in substantial income?

Yes. For conservation easements, the issue is not the income from the activity, but the impact of the activity on the conservation values protected by the easement.

Tall Timbers’ easements encourage the continued use of property for hunting, agriculture, and forestry. These are reserved rights identified in the legal easement. The easements provide that reserved activities are presumed to meet the protected conservation values. The fact that any or all of those activities are conducted pursuant to a lease does not affect the conservation values, unless the lease allows new intensive uses that affect the conservation values. Industrial or commercial use of a property, however, is subject to restrictions and limitations. For more information, please contact us or call (850) 893-4153 x 228 for a copy of all Timbers Model Legal Easement.

11. Is more than a de minimus commercial use of the easement allowed?

De minimus use is a concept applied to estate planning and taxes under Section 2031 of the Code, and applies only to recreational uses.  It does not affect the qualifications or deduction for the easement gift under Section 170(h) of the Code. The intent of the de minimus recreational use exception is to restrict intensive recreational uses that have an impact on the natural systems the easement is designed to protect, e.g. a golf course or water park, both of which may look "natural" but have significant impacts.

12. Traditional uses are referenced often in easements. What about “compatible” unnamed future uses?

Tall Timbers’ conservation easements allow for "other uses which are compatible with the conservation and protection of the property."  Whether some future, but currently unknown, use is compatible is going to be a case by case determination, and based on whether it results in any adverse effect on the protected conservation values.

13. How does Tall Timbers define “Special Natural Areas” and what can I do in and around them? What can I not do, and why?

Tall Timbers’ conservation easements protect rivers, lakes, and other wetlands. Approximately 68% of designated Special Natural Areas within Tall Timbers’ easement protect these features.

Conservation easements held by Tall Timbers for the protection of natural habitat, may include a subset of land within the easement designated as Special Natural Area (SNA). This designation is conferred upon those portions of the easement property that encompass particularly outstanding or sensitive areas that may require an extra measure of protection and management. The SNA designation is accorded only to those habitats and natural communities that 1) possess high-quality resources, 2) exhibit significant biodiversity, 3) possess intact community organization, 4) exhibit exemplary species composition, and/or 5) have maintained their functional and structural ecological integrity.

SNAs represent, on average, 20% of the acreage on easements held by Tall Timbers, thus providing the landowner with ample opportunity to retain economic and hunting management objectives on the remaining acreage. Approximately 68% of the SNAs are designated to protect high quality wetlands, and the remaining 32% represent upland communities. Given the sensitivity of wetlands to intensive disturbances, and given their importance in maintaining high water quality, timber harvesting in wetland SNAs is prohibited except as necessitated by storm, disease, or insect damage. In upland SNAs, selective timber harvesting is allowed. For those SNAs designated for the protection of intact longleaf pine/ wiregrass communities, landowners have flexibility to employ key quail management practices including disking previously established firebreaks, food plots and/or fields; reducing basal area of overstory trees to permit ample sunlight for pine regeneration and maintaining ground cover; supplemental feeding; mowing hunting lanes; and predator management. For a further discussion of Tall Timbers Conservation Easements are Quail Friendly, please click to see the 2007 Donor Report.

14. What are my various timber harvesting options in my naturally forested areas? Will I be required to maintain a certain basal area or trees per acre?

Forester marking trees for selective timber harvesting on easement land.Naturally forested areas with multi-age classes of trees are considered to be protected conservation values on an easement property. Such areas provide an abundance of values such as wildlife habitat (including threatened and endangered species); carbon storage to reduce greenhouse gases; clean air; sustainable economic and ecological returns from selective harvesting; and sustainable biodiversity. On the other hand, planted stands of pines are treated as a crop that can be harvested at the discretion of the landowner, including clear cutting and replanting.

Managing and harvesting a naturally forested area on a sustainable basis simply means that as older trees are cut, younger trees need to be established to take their place in the system. These younger trees can either be captured naturally from seed fall or they can be planted under the existing canopy, but either way they are essential components of sustainability. 

As far as timber harvesting on naturally forested areas, Tall Timbers offers easement donors three options to choose from or they may present their own formula after consultation with their consulting forester. The object of a timber harvest prescription is to give Tall Timbers a measurable objective for our annual monitoring reports to determine if the landowner is managing naturally forested areas sustainably.

Option 1:  A general basal area goal of 40-60 square feet per acre balances both economic and ecological utility. Landowner management objectives may dictate greater than 60 ba or less than 40 ba goals for their property. If endangered or threatened species exist on this area, goals may be swayed by state or federal requirements for specific species.

Option 2:  Maintain a specific volume of board feet with a specified percent of annual growth cut based on average growth rate determined by a consulting forester. In this scenario, landowners must provide Tall Timbers with current timber volume at the time the easement is granted and then the volume removed after each timber harvest.

Option 3:  Maintain timber volume at some percent of present volume. Landowner must provide Tall Timbers with current timber volume at the time the easement is granted and then the volume removed after each timber harvest.

All of these three options are designed to maintain a healthy, sustainable forest over time and preserve the conservation values of a naturally standing forest.

Other types of prescription options may be used with the approval of the landowner and Tall Timbers.  

15. Can I clear-cut my planted pine areas and either replant them in trees or convert these areas to farming or pastures?

Yes.

16. If I have gopher tortoises, what are my management requirements?

Abide by state and federal laws protecting this and all threatened and endangered species.

17. Can I build a new fish or duck pond anywhere I want?

Yes, except within designated SNAs, subject to applicable federal, state and local laws. 

18. Can I plant, flood, and later drain a duck pond?

Yes.

19. Can I put food plots, ring arounds, and firebreaks anywhere I want to?

Yes, but not in designated SNAs or their buffer areas. Within designated SNAs and their buffer zones, existing disturbances can be used for these purposes. The size of buffer areas is determined on a case by case basis based on the features of the property and as agreed upon by landowner and Tall Timbers.

20. Can I release pen-raised quail?

Yes.

21. May I broadcast feed via a tractor and spreader to feed quail and other wildlife anywhere on my property?

Yes, subject to applicable game laws.

22. Can I harvest pine straw to sell?

Yes.

23. Can I cut and/or herbicide hardwoods wherever I want?

Yes, you can cut and/or herbicide hardwoods with some limitations. Broadcast spraying with herbicides or pesticides of any vegetation is not permitted within SNAs without the prior approval of Grantee.  In addition, timber harvesting is not allowed in SNA wetlands.

24. Can small gap openings be cut in naturally forested areas?

Yes, small gap openings can be cut, but no clear cutting.

25. Can I put burn piles for timber harvesting debris anywhere I want to?

Yes, except in SNAs and adjacent buffers. In SNAs, existing loading ramps or other disturbed areas can be used to burn timber debris.

26. Can I burn as often as I want and at the time of year that only I determine?

Yes. Tall Timbers only makes recommendations.

27. Can I remove fallen trees wherever they occur?

Yes.

28. Are there limits to how often I can harvest a specific tract of my property?

No, provided timber harvesting follows conservation management plan prescriptions and guidelines.

29. Can I build more houses on my easement land anywhere I want?

The intent of a conservation easement is to limit the amount of construction to avoid land fragmentation and degradation of the conservation values of a property. It is the extinguishment of these development rights that accounts for much of the tax benefit discussed above. However, since Tall Timbers’ easements conserve large estates, additional houses and the ability to partition can be accomplished within limitations if the original Grantor of the easement chooses to retain such rights. If such rights are retained in the easement, Tall Timbers’ Policy on Partition of Parcels and New Construction allows for the owner of property in excess of 1,000 acres to reserve either a headquarters site or a home site per 500 acres on average. Other options encourage the clustering of development, which allows separate ownership, to protect open space. For properties less than 1,000 acres, reserved rights for partition and new construction are reviewed on a case by case basis. Once a retained development right is used, further development is prohibited.  Regardless of the size of the property, construction is prohibited in SNAs.

30. Do my existing houses count toward the total number of houses allowed on my property in the future?

Yes

31. Can multiple joint owners of a property separately own houses in an allowed building envelope?

Yes, but only in clustered residential building envelopes.

32. Can any house be relocated, enlarged, or altered if I want to?

Houses can be altered and enlarged. Relocation of a house must be a reserved right and there are limitations, especially with open space scenic easements and within SNAs.

33. Can I fence and gate the perimeter of my property with any type fencing I want to?

Yes, except if the conservation purpose of the easement is for open space for the scenic enjoyment of the public, in which case the fence cannot block the viewshed.

34. On the interior of my property, can I fence in areas for livestock or privacy anywhere I want?

Yes.  However, livestock is restricted from designated SNAs, adjacent buffers, and non-SNA wetlands because livestock will degrade the conservation values of these areas.

35. Can I  access my property anywhere by any means that does not do permanent damage to any SNAs?

Yes.

36. Can I maintain all roads, culverts, and bridges on my property?

Yes, with limitations on the use of impervious materials (i.e., asphalt or concrete).

37. Can I build single-lane roads anywhere on my property?

Yes, with limitations on the width of the roads and the use of impervious materials.  Construction of roads within designated SNAs is prohibited.

38. Can I add rocks, gravel, and soil to roads and abandoned firebreaks used as roads to maintain them in usable condition?

Yes.

39. How often is my easement monitored for compliance? How long does it take? Can it be done at my convenience?

Tall Timbers monitors its easements annually. It usually takes a day or two depending on the size of the easement property, and we try to schedule the monitoring visit at a mutually convenient time for the landowner and Tall Timbers.

40. Why doesn’t Tall Timbers outsource monitoring as a cost saving measure to the organization?

Building rapport and trust with easement landowners and their managers is one of the most important outcomes of a successful easement relationship. From time to time, landowners’ management needs will change. Having professional staff that understand and can respond to those  needs in the context of hunting, productive forestry, and other rural traditions distinguishes Tall Timbers from land trusts that may have no local connection. As a land trust operating within a larger research station, Tall Timbers offers extension services in a multitude of fields that a landowner can call upon. While it may be more cost effective in strict financial terms to utilize consultants, having the continuity of one staff person working with a landowner over years encourages stronger relationships.

41. Why does Tall Timbers charge for its easement work when the state of Georgia does not?

Tall Timbers seeks through a cost recovery pledge to recapture its costs for development of the easement documents (field work, baseline documentation report, and conservation management plan). In addition, Tall Timbers asks for a one-time donation of 1% of the easement value to be placed in an endowment for the monitoring and the defense of the easement.

At the request of the Georgia Governor, neither the Georgia Forestry Commission (GFC) nor the Georgia Department of Natural Resources (GDNR) asks landowners for contributions for stewardship, including monitoring and enforcement. The State covers the costs of stewardship with funds derived from state taxes, federal funds, or other publically funded sources.

At first glance, this policy places non-profit land trusts like Tall Timbers at a significant competitive disadvantage. Land trusts must have funds set aside for long term stewardship as a requirement of both the Land Trust Accreditation Commission and the IRS Treasury Regulations. There are, however, some important differences between conservation easements held by GFC or GDNR and those held by land trusts. Georgia state agencies' approach to conservation easements is standardized one-size-fits-all; the process is slow and is bureaucratic. Tall Timbers and other land trusts approach each easement as being unique, addressing the interests of each individual landowner and the specific landscape and its values, uses and needs. Land trusts are nimble, quick and flexible. In addition, with funds set aside for long-term stewardship, land trusts have the resources to insure that the terms of the conservation easement are adhered to from now on.

42. Are Tall Timbers’ easements more restrictive now than they were ten years ago? If so why?

Tall Timbers’ easements are different now. Ten years ago, attorneys drafting easements included as many conservation purposes (relatively natural habitat, open space, historic preservation, etc.) even if the property did not have conservation values that reflected those purposes. The IRS has tightened its rules, now requiring that easements prove and conserve the public purposes for which the landowner is seeking the deduction. Tall Timbers, through its baseline documentation report, clearly establishes and documents the conservation values of a property, and then summarizes those values in the legal easement.

Over the thirty years since Tall Timbers accepted its first conservation easement, it has had to respond to ever changing circumstances.  In addition, the IRS and state requirements for tax deductions and exclusions continue to change. In order to ensure that landowners and the public will have confidence that Tall Timbers is acting fairly and even-handedly, and without favoritism or benefit to any person or entity, Tall Timbers has developed policies to guide partition, development, amendments and other aspects of the easements. While some might view these efforts as “more restrictive,” they do little more than memorialize the long standing practices of Tall Timbers, modified as laws change and knowledge evolves.

Beyond meeting IRS and other governmental requirements, Tall Timbers endeavors to ensure that its easements provide flexibility to landowners to continue the viable use of their property for their multiple objectives. Tall Timbers is fortunate to have a dedicated group of landowners and a forester who serve on its Easement Review Committee. This Committee is charged with the duty of reviewing each easement project and its accompanying documents. Furthermore, the group makes recommendations for revisions to Tall Timbers’ Model Legal Easement and Model Conservation Management Plan. Having this oversight committee makes our easements grounded in practical application to the needs of landowners and their management goals while conserving the conservation values that distinguish the Red Hills and the greater Albany region.

43. What if I have more questions?

Feel free to contact our office by email or call (850) 893-4153 x 228.

The mission of Tall Timbers Research Station & Land Conservancy is to foster exemplary land stewardship through research, conservation and education.