Conservation Easements for Agricultural Land
In most cases, conservation easements stand alone, working on their own to achieve a set of conservation goals. However, conservation easements are often a foundational pillar of another, more complex conservation program, supporting a larger program or another tool. This section provides an overview of some creative ways conservation easements have been used throughout North America.
There are currently no land trusts in Alberta dedicated to the protection of agricultural land for agricultural purposes. There are four regional land trusts that include agricultural land in their mission, another that is currently exploring the addition, and several that work with agricultural landowners.
The ability to apply conservation easements to agricultural land is relatively new (created in 2009 with the enactment of the Alberta Land Stewardship Act). In time current land trusts may expand their purposes to include agricultural land conservation and new ones will form. As all municipalities in Alberta are required to include direction for protecting agricultural land in their statutory documents, rural municipalities are most likely to be early adopters of this tool.
However, in other jurisdictions, there are land trusts devoted to the protection of agricultural land. Two prominent examples are the Ontario Farmland Trust and the American Farmland Trust.
The mission of the Ontario Farmland Trust is “to protect and preserve farmland and the associated agricultural, natural and cultural features in the countryside and to research and educate to further the preservation of these lands for the benefit of current and future generations. … Our vision is for an Ontario that includes a healthy and vibrant agricultural landscape that provides a safe and local supply of food for all Ontarians now and in the future."
The American Farmland Trust describes itself as “the only national [USA] conservation organization dedicated to protecting farmland, promoting sound farming practices, and keeping farmers on the land. As the vital link among farmers, conservationists and policy-makers, we’re focused on ensuring the availability of the land that provides fresh food, a healthy environment and lasting rural landscapes."
There are several different facets to "Conservation Development" ranging from conservation sub-division to green infrastructure. The examples below are limited to two, which are developer or landowner initiated and use conservation easements. Such applications are most likely to have the municipality actively using the conservation easement tool.
When landowners want to realize some capital from their land, they may seek to subdivide then sell some of their property. For those in this situation, limited development can provide an ecologically and economically sound alternative.
With limited development, the landowner chooses to sell only one or a few residential lots on their property, at a much lower density than zoning allows. The lots are designed and sited to minimize interference with the property’s ecologically-sensitive or valued features (riparian zones, wildlife corridors, wetlands, woodlots, grassland or farmland, etc.). The undeveloped portion of the property is protected by the donation of a conservation easement.
Infrastructure costs are lower, and a premium price can be charged for the lots because the desirable viewscapes and features are protected. The tax receipt from donating the easement can offset taxes payable on proceeds from the sales. For agricultural landowners in particular, the cash can mean improved viability, while the land stays in production. It also means long-term protection for land that would otherwise have been developed.
An extension of the co-housing or eco-village concepts, bareland condominiums are small cooperative communities where landowners own a common interest in a portion of a parcel of land.
Similar to limited developments, bareland condominium communities develop their residential units, usually with reference to the ecologically sensitive features of the property, and designate a portion of the land to remain undeveloped.
The residents association determines and controls the use of the non-residential land. They may designate it for food production, recreation or nature conservation. In order to provide perpetual protection for those features and uses, some communities will grant a conservation easement.
One example is the Whole Village near Caledon, Ontario. The 190-acre property includes residential, farm and conservation land uses. As well as a Farm Plan and Forest Management Plan, the residents have granted a conservation easement that zones the parcel into Wetlands, Woodlands, Agriculture and Residential, with varying levels of protection.
’Grassbanking’ is an innovative method of protecting grazing lands and wildlife habitat pioneered in the southwestern United States by the Malpai Borderlands Group and the Animas Foundation.
These groups faced the problem of trying to reintroduce the effects of recurrent low-intensity fire to their grassland ecosystems. Their solution was to use the Animas Foundation’s ranch and its associated grazing lease as a grassbank. Participating ranchers could graze cattle there while restoration activities took place on their home property. In exchange, these ranchers granted a conservation easement on their own property which prevented subdivision. Grazing on the grassbank was carefully managed, fire and brush-clearing worked to renew productive and ecological health on the easement lands, and the easements prevented subdivision and conversion of grasslands in the area.
There is an Alberta example of a version of a grassbanking project. The Nature Conservancy of Canada launched a pilot project on a ranch they own in Southern Alberta called the Sandstone Ranch. By maintaining and enhancing natural capital on their own ranches or farms, program participants have the opportunity to earn stewardship credits that can be used towards grazing fees at the Sandstone Ranch.
Though conservation easements are generally voluntary, private agreements, there are a number of creative zoning and planning techniques that have easements as their cornerstone. This new perspective about cooperation between landowners, local governments and land trusts has led to some very effective ways of using conservation easements.
Alberta’s Municipal Government Act allows municipalities to permit increased housing density on a portion of a proposed subdivision in exchange for the delineation of sensitive areas on that parcel where development is not allowed.
Such “cluster development” or “bonusing” is not a new technique, but the added protection gained by granting a conservation easement is. Previously, the undeveloped land was still open to development in the future if the land use by-law was amended. Whether held by a conservation group or the municipality itself, a conservation easement can provide a perpetual guarantee that the ecologically important features on the undeveloped land are protected.
Transfer of Development Credits (TDCs)
The most attractive land for residential development is often the most ecologically or agriculturally valuable as well, but when local governments use zoning to try to concentrate development in areas that are less sensitive, landowners may feel unfairly treated. Those in areas that do not allow development feel cut off from the economic advantages available to those in areas open to development.
A Transfer of Development Credits (TDC) program alleviates that inequity through an open market system for trading development credits. In a TDC program, the municipality will designate TDC Conservation Areas (also referred to as sending areas) and TDC Development Areas (also referred to as receiving areas). A set number of development credits is then assigned to each parcel within the conservation area, and a set number of bonus opportunities to parcels in the development areas. Landowners are free to buy and sell their credits at prices they determine.
When someone comes forward with a development proposal, they must have acquired a number of development credits equal to the number of parcels in their proposed subdivision. The lands from which development credits have been sold are permanently protected from subdivision by the placement of a conservation easement.
TDC programs in Alberta are enabled by the Alberta Land Stewardship Act. The MD of Bighorn has a TDC program in their Ag Small Holdings area. There are approximately 200 TDC (generally called Transfer of Development Rights or TDR) programs operating in the United States.
Tax and Estate Planning
Depending on a landowner’s financial or family status, the receipt that accompanies the donation of a conservation easement may be very handy in tax or estate planning.
For example, passing land to children may not trigger a taxable capital gain for certain landowners, but you may want to pay it anyway. That tax is not eliminated in the rollover, just deferred. Using your tax receipt, you may be able to eliminate some taxable capital gain, and pass the land on to your children without that burden.
For most agricultural landowners, their land is their retirement nest-egg. Yet they may also have cash in an RRSP, while carrying a mortgage on their land. A tax receipt can allow such a landowner to retrieve his/her RRSP tax-free, then apply that money to lowering their mortgage. Many landowners have financial dealings unrelated to their land, yet a CE tax receipt can offset capital gains on investments or other taxable proceeds.
One Alberta land trust, the Southern Alberta Land Trust Society, has developed an information binder to help make ranching landowners aware of these tax and succession planning possibilities.
Because land is a very valuable asset, conservation easement transactions often see large charitable tax receipts going to landowners with modest incomes. However, that tax receipt must be used within the next 5 years (10 years for an EcoGift ), so landowners often do not have enough income over that period to make full use of the tax receipt.
To address this problem, some landowners have chosen to donate a conservation easement on only a portion of the land they wish to see protected. When the tax receipt they receive is used up, they grant another easement.
Though this ensures there is no unused tax receipt, landowners need to be aware of other problems that arise. The costs of doing several transactions are greater than doing one. Be prepared to pay for multiple legal reviews, appraisals, etc. This increased cost may also discourage potential easement holders. Also, if the landowner dies, and there is no provision in their will to grant the remaining easement, their conservation goals may not be realized.
Nonetheless, time-staggered donations can help ensure you get the greatest economic benefit from your donation.
Urban Growth Management
One key component of Urban Growth Management (often called Smart Growth) involves determining lands of particular importance for watershed protection, agriculture, biological diversity, recreation, natural resources, etc. and directing any new residential and intensive commercial development to other locales.
The State of Oregon had the first aggressive growth management program in 1972, requiring cities to establish boundaries beyond which they would not provide services. Here in Alberta, the town of Okotoks led the way with their award-winning Sustainable Okotoks Municipal Development Plan, which limited population, town boundaries and water use. The recent repeal of that policy shows the challenges of leaving such a program to political will only.
The State of Maryland went one step further and incorporated conservation easements into their Smart Growth plan. Maryland’s Economic Growth, Resource Protection, and Planning Act directs state funds for development only to designated ”Priority Funding Areas.” At the same time their Rural Legacy program provides funding and incentives for conservation easements on the areas outside designated Priority Funding Areas. These efforts protect critical ecological functions, support wildlife, safeguard fragile water resources and protect productive farmland.
Urban Water Quality Protection
Ensuring secure sources of drinking water is becoming a larger - and more expensive - concern for urban municipalities. Tensions between urban and upstream rural populations add to the complexity. However, New York City (NYC) has found a way to address both the social and ecological concerns, and conservation easements are a centrepiece to that strategy.
During the first half of the 20th century, NYC acquired large tracts of land upstream to create reservoirs for their water. Farms were flooded and villages relocated in the process. In 1989, the federal Safe Drinking Water Act required a new higher standard of water quality. Engineers projected the cost of new treatment facilities to be around $5 billion, then millions annually to operate.
But the new legislation allowed for the protection of watersheds as an alternative. Working cooperatively with the upstream farmers this time, NYC worked with the American Farmland Trust to establish the Watershed Agricultural Council. The City funded ”Whole Farm Plans” and provided $20 million to purchase agricultural conservation easements in the Catskill/Delaware River watershed.
Farmers retained their land, higher standards of agricultural management were implemented, the upstream watershed was protected from intensive use in perpetuity and New York City saved literally billions of dollars.
Groundwater Recharge Protection
In Alberta, groundwater is relied on heavily for both human needs (drinking water, industrial use) and ecological function (water cycling, wetland habitat). Those aquifers are dependent on associated landscapes that capture precipitation and surface water, facilitating critical absorption and recharge. Despite their importance, those wet areas are often seen as barriers to development and economic activity, leading them to be drained and filled, or re-formed to harden them and degrade their infiltration capacity.
Though not currently a primary use, conservation easements can be used to limit land use activities that impair this groundwater re-charge capability. Land trusts can identify critical recharge areas in their area of focus and target them for conservation. Municipalities can include consideration of groundwater recharge areas in development proposals and approvals, and use conservation easements to facilitate protection of these critical landscapes within a matrix of developed lands.