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CONSERVATION EASEMENTS

INTRODUCTION

A conservation easement is a legally binding agreement between a property owner and a second party (the easement holder) that restricts the type and amount of development and use that may take place on the property.  Conservation easements, which are voluntary in nature, can complement government acquisition programs, land use regulations, and structural controls to protect water quality as well as other significant natural resources in the Oconee River Watershed.  In 1992 the Georgia legislature passed the Uniform Conservation Easement Act which authorizes and promotes the use of conservation easements in Georgia.

Ownership of land encompasses a "bundle" of rights- to subdivide, to sell, to farm, to cut timber, and to build, for example.  A landowner may voluntarily agree to give up one or more of these rights in order to protect a particular natural or historical resource.  For example, he might agree to forego land disturbance and chemical application within a certain distance of the Oconee River or its tributaries or to forego quarrying activities on a parcel in order to protect the habitat of the snorkelwort, a rare aquatic herb found on granitic outcrops in the watershed

In addition, he may reserve the authority to exercise a number of basic rights- to sell, lease, assign and use the property; to restrict public access; to maintain the land for agricultural use; or to construct additional dwellings, for example.  Under no condition may these reserved rights impair the resource or conservation value the easement seeks to protect.

The agreement restricting and reserving certain uses is binding on future purchasers of the property and is recorded as a Deed of Conservation Easement.  It is the responsibility of the easement holder (which can be a government body or a land trust, a non-profit organization whose mission includes the protection of land) to routinely monitor the property, usually once a year, to ensure that the agreement is not violated and to pursue legal recourse to compel compliance if necessary.
 

BENEFITS TO THE LANDOWNER

By entering into a conservation easement, a landowner ensures that his land will be protected for future generations while remaining in private hands.  There may be financial benefits as well.  If the landowner gives the easement in perpetuity for conservation purposes recognized by the IRS, he may be able to deduct the value of the easement from his personal federal and state income taxes.

The Internal Revenue Code defines conservation purposes as the preservation of land areas for

  • outdoor recreation and education for the general public;
  • the protection of  relatively natural habitat;
  • the preservation of open space (including farmland and forest land) for scenic enjoyment or pursuant to a governmental conservation policy; or
  • the preservation of historically important land or buildings.


High estate taxes, which have forced the sale of many treasured family lands, may be similarly decreased through the use of conservation easements satisfying the Internal Revenue Code.  If a property owner restricts the use of his property through a conservation easement prior to his death, the estate tax is assessed on the restricted value of the property.  When the landowner bequeaths a conservation easement to a land trust in his will, the value of the easement is deducted from the estate.

 
Property taxes may be decreased as well since restricting various development rights may diminish the fair market value of the land.  The public benefits from resource protection afforded by the easements should substantially outweigh the costs in terms of decreased revenue to the local government.  Easements restricting land-disturbing activities and chemical handling on the bank of the Oconee River, for example, may result in decreased costs of drinking water treatment and increased revenues generated by recreational users.  Easements protecting agricultural uses on a tract of land help assure the viability of agricultural-dependent businesses in the community.  Easements protecting open space and scenic views may result in increased property values on adjacent land.
 

LAND TRUSTS ACTIVE IN THE OCONEE WATERSHED

There are two land trusts that currently accept conservation easements and property in the counties in the Oconee watershed- the Athens Land Trust and the Oconee Rivers Land Trust. Government agencies can also accept easements; the U.S. Army Corps of Engineers, for example, holds conservation easements on several tracts of land in the Oconee Watershed. Though no local governments in the Oconee watershed hold easements, there is precedent in the state for doing so. The city of Alpharetta holds a conservation easement on wetlands in its Big Creek Watershed.

Local governments may support the work of land trusts in the watershed by clearly documenting their preservation policies.  Before allowing a federal income tax deduction for a specific open space easement, the IRS must determine that the preservation of that open space is pursuant to a clearly delineated conservation policy of the federal, state or local government.  To that end, language in a local government's comprehensive plan and land use regulations describing areas of the jurisdiction worthy of protection and mechanisms for that protection is helpful. A general goal of protecting open space throughout the county would probably not be adequate but the designation of certain types of land for preferential tax assessment purposes or for open space, farmland, scenic or river overlay zones, for example, are more likely to satisfy the IRS.
 

REFERENCES

Laurie Fowler, Conservation Easements for Natural Resource Protection published by the Georgia Environmental Policy Institute, Athens, Georgia 1994.

Mark E. Elliott, "Open Space Preservation: An Analysis of the Internal Revenue Code Definition of A Conservation Purpose", The Back Forty published by the Hastings School of Law, San Francisco, California, October 1991.