Texas has long been known for its private land ownership. It includes ranches and farms that have been owned by the same family for generations as well as recently bought second homes in idyllic rural locations. Many Texas landowners find themselves in the same situation. How can you ensure your land looks its best forever, no matter what it is? A conservation easement is a tool that landowners use to preserve the natural condition and integrity of their land for future generations.
Texas, with 95 percent (approximately 163,000,000 acres) of Texas being owned by private landowners makes it the most privately-held land in the United States. It is also more than Montana and Kansas combined. Unfortunately, the country is also leading in rural land lost to development each year. According to the Texas Land Trends (NRI) from Texas A&M Natural Resources Institute, more than two million acres of land have been converted to another use between 1997-2017. Additionally, over 1.2 million acres have been lost to development in the past five year. Texas is experiencing rapid population growth. New residents require new homes and apartments to rent. Developers are eager to acquire farms, ranches or pastures close to urban areas. While this slow development and the changing use of land is not immediately apparent, it can have a profound impact on the long-term.
Texas has very little land for conservation, considering its size. The Texas Parks and Wildlife Department, (TPWD), manages just over one million acres in state parks and other wildlife management areas (WMAs), while the rest is divided between the United States National Forest Service and National Park Service. This means that the majority of Texas land and wildlife conservation is managed by private landowners.
There are many opportunities for landowners and land managers to implement conservation measures on their property. There are several organizations, such as TPWD (USDA Natural Resource Conservation Service), NRCS (NRCS), Texas A&M AgriLife Extension, which provide education, guidance, programs, and assistance in conserving and managing natural resources. But what about protecting the land as a whole. Here conservation easements come in to play.
A conservation easement can be described as a deed restriction that is very specific. The downside to a deed limitation is that it can be reversed by a future owner. A conservation easement is an agreement between a property owner, qualified conservation organization (e.g., non-profit trust, municipality or governmental entity), that cannot be rescinded. This type of legal agreement requires that the owner consents to limit development on their property. This is possible because property development rights are similar in nature to other property rights like minerals or grazing that can be leased and sold or gifted separately from land. A conservation easement can be used to create separate development rights, and then have them placed in trust for long-term protection.
While conservation easements are a long-standing tradition in the United States, they were not popularized in Texas until the 1980s. Today, the state has nearly 800 conservation easements that cover more than a million acres. More than 30 land trusts are responsible for the majority of this work in the state. Land trusts, which are charitable organizations, have the mission to conserve land and water. These land trusts have helped to conserve over 1.8million acres of land by collaborating with local and state agencies, through conservation easements and outright land ownership. Some are focused on geographical regions, such as the coast, while others focus on ecosystems like the prairies. Texas Land Conservancy and others work on a larger scale across the state.
How does the landowner view enacting conservation easements? Every conservation easement can be tailored to the specific property and landowner. If the landowner wishes to prohibit certain activities, then traditional land uses like hunting, agriculture, or recreation are allowed. The landowner can decide what restrictions or provisions are to be placed on their property. A landowner might have two children and a house that is already on the property. They may reserve the right to construct two more houses. If the landowner wants to prohibit future construction, they can add a ban on further building. Since the easement is indefinite, it is crucial to take the time to consider all possibilities and to seek out counsel to guide you through the process.
There are some misconceptions about conservation easements. One is that the landowner loses ownership of the land and the public has full access. It is completely false. It is impossible to grant public access. To ensure that the conservation easement terms are being maintained, however, the owner of the conservation easement must visit the site at least once per year. This is a coordinated visit that includes the permission of the landowner. The conservation easement will not protect you from being condemned. They may be beneficial, but not always able to stop condemnation.
So why would a landowner limit what they can do with their land? First, a desire to preserve the land as it is for future generations. They love their land. I work with landowners whose history dates back 100 years or new landowners. They want future generations to enjoy that love, which extends beyond their lifetime. A conservation easement can be used as an insurance policy for doing just that.
The second benefit is the financial. In the past two decades, land values have increased by nearly 300 percent. The value of land in the preceding year was even higher. The conservation easement that landowners place on their property gives up certain development rights. These rights are valuable. Because land trusts are 501 (c)3 non profit organizations, the conservation easement is a charitable donation and can be used as an income tax deduction. To determine the contribution’s worth, an appraiser must be hired. An appraisal is required to determine the contribution’s value. A conservation easement also lowers the property’s worth, which can be beneficial for estate planning purposes, as it helps to reduce overall estate values.
The Texas Land Trust Council is a state-wide trade association for all land trusts that offers great resources to anyone who is interested in the concept of a conservation easement. In order to determine interest and find if the project is right for them, most landowners will meet with several land trusts. It takes on average three to six month to prepare and complete a conservation easement transaction.
I am encouraged by the growing trend of landowners using conservation agreements, which results in a steady increase in protected land for future generations. Aldo L. Leopold’s Sand County Almanac said that “Health” is the land’s capacity for self-renewal. This is what conservation is all about. We can preserve Texas’ unique Texas character by conserving private lands.