Agricultural Conservation Easement FAQ
What is a conservation easement?
A conservation easement is a voluntary legal agreement made between a landowner and a conservation nonprofit or government body. Agricultural conservation easements permanently protect farmland from future development while ensuring it remains available for agricultural production. The easement does this by permanently removing development rights, prohibiting incompatible uses (industrial and commercial), and protecting the property’s agricultural values, including the soils, water rights, and open space.
What allows conservation easements to exist?
Washington State’s Conservation Easement Enabling Statuses (Washington Rev. Code 84.34.200 to 84.34.250) recognizes the public benefit in the preservation of open space and allows for the use and public funding of conservation easements to protect this public benefit.
RCW 84.34.200: “The legislature finds that the haphazard growth and spread of urban development is encroaching upon, or eliminating, numerous open areas and spaces of varied size and character, including many devoted to agriculture, the cultivation of timber, and other productive activities, and many others having significant recreational, social, scenic, or esthetic values. Such areas and spaces, if preserved and maintained in their present open state, would constitute important assets to existing and impending urban and metropolitan development, at the same time that they would continue to contribute to the welfare and well-being of the citizens of the state as a whole. The acquisition of interests or rights in real property for the preservation of such open spaces and areas constitutes a public purpose for which public funds may properly be expended or advanced.”
Because conservation easements involve private negotiations between a landowner and an easement holding entity, those negotiations are typically handled with care to protect any sensitive landowner information and respect privacy during negotiations. Many elements of the conservation easement process are public record however, including grant applications to public agencies for easement funding, finalized transactions and recorded acquisition documents, and public and educational events hosted on protected properties after closing.
How much is a conservation easement worth? Who is compensated for an easement?
The value of a conservation easement is determined by an appraisal, which considers the value of the property and its development rights according to the “highest and best use” of the property. The value of an agricultural conservation easement is the fair market value of the property minus its agricultural value, as determined by a qualified appraiser. In general, agreements that are more restrictive have a higher value. If the easement is being purchased by a land trust or government entity, the landowner is compensated cash through escrow for appraised value of the conservation easement. If the easement is being donated to a land trust, the appraised value of the conservation easement can be used as a basis for the landowner to claim income tax incentives on a charitable contribution. For more information on the tax incentives of donating a conservation easement, please see here.
What is in a conservation easement? What is allowed and what is restricted?
Easements have a host of legal provisions meant to support the agricultural uses of the property. These include,
- Removing development rights
- Prohibiting development for commercial or industrial use
- Limiting impervious surfaces (to keep soil open and available for agriculture), such as compacted gravel, pavement, and other structures that impede water infiltration
- Keeping water rights intact with the property, and not allowing them to lapse
- Subdivision restrictions
- Restricting mining or large scale land alteration
- Allowing for all intended agriculture uses as defined in WA state code
- Allowing temporary ag accessory uses, as is consistent with county zoning and code
- Flexibility towards activities that can co-exist alongside ag, like habitat
Each conservation easement involves negotiation with the landowner around certain provisions and restrictions that take into account the landowner’s long-term plan for their property.
How are easements managed?
The management and stewardship of easements are a perpetual responsibility and involve additional costs to the holding entity. Government agencies, which are the primary funders of easements through public grants, require certain restrictions and management. PCC Farmland Trust [holding entities] has high respect for private landowner rights when managing easements, and works closely with landowners and tenants. Perpetual responsibilities and costs of holding easements include:
- Annual monitoring,
- enforcement costs of violations,
- natural resource management through stewardship planning,
- and opportunities for educational events (which are negotiated with landowners on a case-by-case basis and are not a requirement of the easement).
Who can hold easements?
Land Trusts, County Government, Conservation Districts or State and Federal Government can hold easements. Land Trusts and County Governments are the most common holders of easements. All easement holders work under the same base set of legal standards, public benefit requirements, private benefit prohibitions, and funding requirements.
How are projects prioritized?
Conservation easement projects are prioritized by a number of factors. For agricultural conservation easements, most public funding sources agree on the key indicators of long-term agricultural value and viability – prime soils, water availability, on-site infrastructure, historical productivity, market access, proximity to other agricultural lands, and proximity to other protected open space, among others. In addition, projects are also prioritized by potential threat of conversion, as well as the general open space benefits (including water quality, wildlife habitat, and scenic views). In Pierce County, the members of the Strategic Conservation Partnership (SCP) partnered with the Pierce County Ag Roundtable to conduct a GIS-based prioritization of farmland protection opportunities in Pierce County; based on a set of farmland quality indicators (soils, location, etc.) and threat indicators (pending plats, proximity to urban growth boundaries). This prioritization is used by the SCP as a guide for landowner outreach and evaluation of farmland conservation opportunities in Pierce County.
Where does funding for easements come from?
Funding for easements primarily come from federal (USDA), state (RCO), and county grants. PCC Farmland Trust also raises and leverages private contributions to support our farmland protection work.
How long does the process take?
A land trust or other conservation partner must undertake many steps before it can purchase an easement, including conducting a site assessment, securing of public funds, conducting acquisition and liability due diligence, and completing title review and baseline documentation. Because easements are primarily funded through public grants, which are available on either an annual or a biennial basis, it typically takes 2 years or more for a land trust or conservation partner to purchase an easement.
Can a landowner sell a conserved property? What happens to the easement?
Because easements are tied to the property and not the landowner, landowners can sell their conserved property and the property will continue to be protected by the conservation easement. Any future landowner is responsible for upholding the conservation easement.
Can easements change after they’ve been agreed to?
Easements are not meant to change over time. They are written to be perpetual legal agreements. There are enforcement and amendment processes described in the easement for situations when an easement needs to be amended. Anytime an easement is amended there needs to be a net conservation benefit from the amendment. An easement cannot be amended without agreement of the current landowner.
What is the value of an easement when development is restricted by zoning, like in a floodplain?
When valuing a conservation easement, an appraiser takes into account the development pressure and potential uses of a property. Depending on zoning, a limited amount of development may still be allowed, making a conservation easement hold some value. Typically greater development pressure will result in a higher easement value.
What happens if conserved land isn’t farmed?
Although PCC Farmland Trust places a strong emphasis on keeping farmland actively farmed, the public benefit test required of an easement is met by the land staying as “open space”. In general, requiring a landowner to keep a property in production is a sticky issue. Given the way that easements function legally, they are more effective as a tool to prohibit a certain activity, than to require a certain activity to happen. While it is difficult to require conserved land to be farmed, PCC Farmland Trust’s easement does incorporate a number of provisions to encourage continued agricultural use, including provisions requiring current use enrollment, maintenance of water rights and open fields, and limitations supporting long-term affordability.