Protecting forestland for good: conservation easements and the other tools

A woods takes a century or three to become what it is and an afternoon to lose. Sooner or later anyone who owns a piece of forest, or loves one that belongs to someone else, asks how to keep it standing after they are gone. Here are the tools, in plain terms. We grow trees; we are not lawyers or tax advisors, and every tool here has details that depend on your state and situation. Talk to a land trust and an attorney before you sign anything.

Why standing forest cannot be replaced

We sell trees for a living at Blue Whale Trees and will say it anyway: planting is second best. A standing forest has things no planting can supply.

• Soil. Centuries of leaf litter, root channels and fungal networks make a forest soil. Scrape and compact it and that structure is gone for lifetimes.
• Old trees. The only way to get a 200-year-old tree is to wait 200 years. Old-growth character, the snags, hollows and giant logs so much wildlife depends on, takes longer still.
• Genetics. The trees in a wild stand are the local strain, proven against every drought and winter on that ground; replacement stock comes from wherever was cheapest.
• Connectivity. A woods is usually part of a corridor along a stream or ridge, and the tract that gets cut is often the one that joined two others. What is left becomes edge, and edge is poorer habitat.

Public ownership

The oldest tool is to make the land public: a national forest or park, a state forest, park or wildlife area, a county or town park. Agencies buy land, accept donations, and often work through a land trust that buys the parcel first and passes it on. The advantages are permanence, management and usually public access. The drawbacks: it is slow, budgets are thin, and protection is only as strong as the law behind it. In some states parkland cannot be sold or converted without an act of the legislature; in others a future council can do it with a vote.

Conservation easements

A conservation easement is a voluntary, recorded legal agreement in which a landowner permanently gives up certain rights, most often the right to subdivide and build. Under it, a land trust or agency takes on the duty to see that those rights are never exercised. It runs with the land: every future owner is bound by it. It is the tool most private forest owners end up using: it protects the land without giving it away.

“While the landowner may sell the land, the restrictions run with the land and apply to all future owners of the parcel under conservation easement.” (NC State Extension, Conservation Easements and Agreements: Obligations, Modification and Termination)

What an easement typically does:

• Prohibits subdivision, new construction, mining and dumping, sometimes reserving a single house site.
• Limits or guides timber cutting, often through a required forest management plan.
• Protects streams, wetlands and features named in the document.
• Requires the holder to monitor, usually yearly, and gives it the right to enforce in court.

What it does not do:

• It does not transfer ownership. You still own the land, live on it, sell it or leave it to your children.
• It does not require public access unless you agree to it.
• It does not end farming, hunting, firewood cutting or sustainable timber harvest where the terms allow them.
• It does not manage the land for you or end property taxes, though it may lower the assessment.

A donated easement that meets federal requirements may qualify as a charitable gift, some states add credits, and some easements are bought rather than donated. All of it depends on an appraisal and your circumstances, which is where an attorney and a tax advisor earn their fee. Expect the land trust to ask for a contribution to a stewardship fund that pays for monitoring, and to prepare a baseline report recording the land’s condition at signing.

The tools side by side

Programs, and the weaker tools

Two kinds of public program buy easements on working land. Forest legacy programs, run through state forestry agencies with federal money, protect private forests threatened by conversion while allowing continued timber management. Farmland protection programs at every level of government buy development rights on farms, and the woodlot at the back usually comes along. Current-use and forest tax programs are different: they lower taxes while the land is enrolled and stop the day it leaves. They are not protection.

“The Forest Legacy Program is a conservation program administered by the Forest Service in partnership with State agencies to encourage the protection of privately owned forest lands through conservation easements or land purchases.” (USDA Forest Service, Forest Legacy)

The weaker tools

Below easements sit tools that help but do not hold:

• Deed restrictions and covenants written in by a seller. They bind later buyers on paper, but nobody monitors them, they get overlooked or renegotiated, and enforcement falls to whoever notices.
• Zoning and local ordinances, such as steep-slope, wetland-buffer and tree-preservation rules. They protect forest today and can be rewritten by a future board.
• A family plan. A will that says who gets the woods and what you intend for them. A family agreement, or a jointly held entity, that states the land’s purpose. Above all, a conversation with a land trust years before any decision; the process is slow, and a good one will help you plan succession even if no easement results.

Protection keeps the bulldozer out. It does not keep out the invasive vines and shrubs or the deer, and a protected woods still needs a steward. Where a protected woods has a gap to fill, the closest thing to the wild stand is the same species grown from seed, each seedling its own individual rather than a grafted clone. The tree finder narrows the species to the light and soil of the gap.

Questions to ask a land trust

The Land Trust Accreditation Commission keeps a directory of every accredited land trust. Take these questions to the first meeting:

• How long have you existed, are you accredited, and how many easements do you hold?
• What will this easement allow (a house site, timber, trails, hunting) and what will it forbid?
• Who pays for the survey, the appraisal, the baseline report and the legal work?
• What contribution to your stewardship fund do you expect, and what does it pay for?
• Can the easement ever be amended, and who decides?
• What happens to the easement if your organization dissolves?
• Will you buy it, accept it as a gift, or something in between?

The woods behind the subdivision

The famous places are largely spoken for. More than 80 percent of the eastern forest is private land, much of it in small parcels. The tract most likely to vanish this decade is not a mountain cove. It is the forty acres behind a subdivision, the strip along a creek, the woodlot at the end of a farm lane. Those are the connectors between larger woods, the buffers that keep streams clear, and the nearest wild seed for everything around them. Local land trusts exist for parcels that size, towns take them on as parks, and neighbors have pooled money to buy them. Protecting one starts with a phone call and a walk in the woods.

Common questions

What is a conservation easement?

A recorded agreement in which a landowner permanently gives up certain rights, most often the right to subdivide and build, and a land trust or agency takes on the duty to enforce it. It runs with the land and binds every future owner.

Do I still own my land under a conservation easement?

Yes: you keep the land, live on it, sell it or leave it to your children, and public access is not required unless you agree to it. Farming, hunting and timber cutting continue where the terms allow them.

How do I find a land trust near me?

The Land Trust Accreditation Commission keeps a directory of every accredited land trust. Ask any trust how long it has existed, how many easements it holds and who pays for the survey, the appraisal and the legal work.

What are the pros and cons of a conservation easement?

You keep owning, using, selling and passing on the land, which is protected from subdivision and new building for good, sometimes at a lower assessment. The cost is permanence, since the rights are gone for every future owner, and the land trust will usually ask for a stewardship contribution.