Last night at the TCEQ meeting on Tommy Davis (Slick Machines) request to get a permit for his rock crushing machine at Chalk Mountain, Sid Miller brought up the idea that perhaps the landowner would agree to signing an entity called a *Conservation Easement*.

I got to thinking this was probably something like what the Nature Conservancy does, looked it up.

In a conservation easement, a landowner voluntarily agrees to sell or donate certain rights associated with his or her property – often the right to subdivide or develop – and a private organization or public agency agrees to hold the right to enforce the landowner's promise not to exercise those rights. In essence, the rights are forfeited and no longer exist.

An easement selectively targets only those rights necessary to protect specific conservation values, such as water quality or migration routes, and is individually tailored to meet a landowner's needs. Because the land remains in private ownership, with the remainder of the rights intact, an easement property continues to provide economic benefits for the area in the form of jobs, economic activity and property taxes.

A conservation easement is legally binding, whether the property is sold or passed on to heirs. Because use is permanently restricted, land subject to a conservation easement may be worth less on the open market than comparable unrestricted and developable parcels. Sometimes conservation easements will enable the landowner to qualify for tax benefits in compliance with Internal Revenue Service rules.

Here's a PDF from TPWD of 9 examples where landowners have done this.  I would imagine that the state of Texas doesn't come up with the money (heck, the TPWD struggles with public funding as it is) but that an agency such as the Nature Conservancy would help out on the cost of purchasing those property rights (or it could even be some kind of non-profit collecting donations to do it, etc).

When I was out west 2 summers ago, I went to the Great Sand Dunes. Some associated land to protect the streams that were by the Dunes had been acquired by the Nature Conservancy.

Now, it does depend on whether the landowner wants to do this, and secondly, how the funds are going to be raised. And whether, of course, anything that happened could put off gutting the existing hills until some other arrangement could be made. But I do think it's a good idea, with a caveat. It seems to me that the way this happens is when somebody WANTS to make this happen that owns the land... not sure what the case is here?

P.S. I got to wondering what Ernie Casbeer, who is running against Sid Miller for Tx House District 59, had to say about the Conservation Easement question. I heard he was downtown Glen Rose this morning so I ran over and recorded his comments. He believes that Conservation Easements are not a good idea, and that State Parks are better. Course that is what happened with the Dinosaur Valley State Park.

Here's a very interesting article on the problems of Conservation Easements that echoes what Casbeer says.

What happens to the landowner? The landowner is still technically the holder of a fee simple interest, but now it is a fee simple interest that is burdened by a servitude.

Is the fact that someone holds a fee simple interest that is burdened by a servitude in and of itself reason for great worry? Not necessarily. As you know, many, many, many lands are burdened by servitudes. Anyone who lives in a planned community has signed on to a number of limitations in the way that he or she can use her land. But one thing that is very striking about conservation servitudes is that they are designed to be difficult to undo.

Think back to your typical servitude. Imagine, for example, that your neighbor has an easement to cross your property to use to get to his property. Is this the kind of deal that you might make with your neighbor? Absolutely. But, say that he wants to cross your property to get access to his property, and so what might you do? You might sell him an easement, the right to cross your property. But you always know, even as you have in effect divided up your land interest to convey a partial interest in your land to your neighbor, that when the time comes when this no longer seems to be a good land use arrangement, you can terminate it through private negotiation. Now I’m not saying that every private deal that ought to be made is invariably made. There are times when, for example, someone might transfer an easement to a neighbor. The day comes when it would be a good idea to, in effect, get rid of it and that deal may not be made necessarily simply because it is hard to do and bargaining costs and so forth. But I think it is important to note that we think that usually deals like that between private parties will be made.

But look at conservation servitudes. What is interesting about these instruments from my perspective as a legal scholar is that they are engineered to be hard to undo. They are meant to be perpetual. There are, in effect, provisions in numerous conservation servitudes that forbid the transferring of the conservation servitude back to the owner of the burdened fee simple. In other words, when conservation servitudes are placed on property, the objective is to prevent the reunification of all the property interests in a private property owner.

So far conservation servitudes have attracted little but praise. When I was doing research for the paper on conservation servitudes, Carol LaGrasse and James Burling were two of the only people who had even raised questions about whether or not things were going to turn out happily. In fact, one of the things that drew me to the project was that I saw instruments that could cause a lot of difficulty in the future and that were receiving praise from people all across the political spectrum.

The Left praised conservation servitudes because they were, after all, meant to provide environmental protection. Put aside for the moment whether or not trying to keep land in ranching and farming use really counts as environmental protection. The left assumed that it was and even though conservation servitude programs led to the transfer of wealth very often to very well connected and well off individuals, people on the left didn’t raise real concerns. This puzzled me.

I was similarly puzzled not to find, again, with the exceptions I just mentioned, all that much suspicion among people who are adherents to the Republican party. I had expected for them to focus on the fact that here were large amounts of government money going to landowners often in exchange for not doing things on their land which they very likely wouldn’t necessarily want to do anyway, which seemed to me to have “boondoggle” written all over it. Why was it that Republicans praised these instruments?

One obvious answer is that conservation servitudes work their magic, as those espouse them often refer to it as, through the transfers of property rights, and certainly there are powerful reasons for preferring to achieve these objectives through property rights transfers than through command and control regulation.

With command and control regulation, as you all are very aware, property owners generally receive no compensation, absent very unusual circumstances, and through conservation servitudes property owners who are willing to surrender their rights, say, to build strip malls, subdivisions and so on, do get some compensation. They get a direct payments or they get tax benefits, and so that in many situations would be, I think, more palatable than if the same objectives want to be achieved through command and control regulation.

So again, I am not arguing that conservation servitudes have zero benefits at any time. But I do think that conservation servitudes deserve enormous scrutiny and this is, in effect, why.

In my view, support for conservation servitudes has been based on two widely held, emotionally appealing, but fundamentally flawed, notions. The first notion is that today’s land owners, together with non-profit institutions such as The Nature Conservancy and at times governments—governments, like the local county government or at times, of course, the federal government—have the competence to make long-term land-use decisions, and we don’t just mean a year or two. I mean, we all understand that when zoning was first brought into being at the beginning of the 20^th century when zoning became widespread, the idea in concept was, wow, this is great. We’ll write a zoning code, and, sure, it will need a little tweaking from time to time, but pretty much that’s it. This is going to work. Well, we know what happened. We know it didn’t work. We know that zoning codes need constant, constant, constant amendment, and this constant amendment gets very messy.

But, suddenly, here we are with conservation servitudes, and I see statement after statement about how, oh, let’s figure out what land needs to be preserved forever. Let’s put restrictions on it that are designed deliberately to be expensive and burdensome to undo and this will all work out happily. I think it is important to note that there is all available evidence to suggest that our ability to, in effect, pinpoint certain pieces of land as meritorious of perpetual protection is at best likely not to work out so well. But the idea that the present generation has the right and maybe even the duty to try to do this for future generations is again very much embedded in support for conservation servitudes, and I think it is very crucial not to underestimate the enormous emotional impact that this has had.

Why is it that I think that our competence doesn’t extend that far? Simply put, nature is always changing. We are in the middle of a shift, we really have had a great paradigm shift. A lot of environmental statutes and a lot of planned preservation frameworks were developed against the backdrop of the notion that nature is stable, that nature, in effect, will remain as she is. So if the place is a good habitat for a species that people like, well, then it is going to remain so. We don’t even think about the fact that the climate will change and the species may migrate and maybe the land that we have set aside as a habitat won’t be habitat for that animal anymore, as it has moved on. Maybe we won’t want it. And, of course, our scientific knowledge is in its infancy.