2020 a Make-or-Break Year for Market-Based Conservation Solutions

By Robert Ramsay February 24, 2020

At the start of a new decade, America faces the competing challenges of unprecedented concern for our environment bumping up against growing development pressure that threatens critical landscapes, vital habitats and lands with tremendous environmental value.

In fact, America is losing two football fields of land every minute to development. Over the next 40 years, urban and developed land area is expected to increase by 39 million to 69 million acres.

To steward our environment through these uniquely challenging times requires the proven power and effectiveness of market-based forces that can go toe to toe with the incentive to develop, in areas where that pressure is greatest, and win.

Conservation of vast tracts of land by mega-wealthy individuals, in areas that face little-to-no pressure from development, is a welcome contribution to the preservation of America’s treasures. But these efforts are not the sort of frontline victories in the fight against unbridled development needed to preserve critical lands in areas where the risk is greatest.

It is on those battlegrounds — the key playing fields for the environmental wellbeing of our nation — where partnership conservation has stepped in to play a key role.

Take one example in Scotts County, Va., where a real estate partnership conserved 1,277 acres of pristine, largely forested land. The property is home to several headwater streams that drain into the Upper Clinch watershed, which The Nature Conservancy has cited as the number-one hotspot in the United States for imperiled aquatic species.

It is bordered by the George Washington and Jefferson national forests, home to more than 40 species of trees, 2,000 species of shrubs and herbaceous plants, 60 species of mammals and 100 species of freshwater fishes and mussels, including 53 federally listed threatened or endangered species.

The land is also rich in a different kind of resource: coal reserves. Without the commitment of the partnership involved and the incentive for conservation made possible by Congress, this land could have been developed as a mine, rather than remaining protected in perpetuity.

There are scores of examples such as Scotts County that highlight the value of conservation incentives that are accessible to all Americans and robust-enough to compete with the financial pressure to develop.

But the value of partnership conservation is not limited only to anecdotes, but also supported by the facts.

According to a preliminary report on land conserved primarily through a partnership conservation structure known as syndicated conservation easement transactions, more than two-thirds have “outstanding” ecological value, and more than 80 percent protect a significant natural resource and have active habitat programs. The author of those early findings is William Snape of American University and the Center for Biological Diversity, who concludes conservation easements donated by partnerships of unrelated individuals have become “a vital conservation pillar for the country” that would benefit from “intelligent changes.”

So what are those intelligent changes?

Partnership conservation, particularly conservation conducted through SCETs, faces a tremendous onslaught of scrutiny, even open hostility, from several directions.

There are limited instances of abuse, but those instances of abuse are rare — and more importantly — they are preventable without sacrificing the market-based incentive for conservation.

While seemingly everyone, on all sides of the issue, agrees the instances and future potential for abuse stem from valuation, there are some who seek to blame the structure of deals or the class of landowner — rather than target the crux of the issue.

This is misguided, and it threatens to weaken overall conservation efforts at a critical moment for our environment. We can prevent abuse and preserve Americans’ access to participate in land conservation.

The way we get there is with a focus on valuation solutions that provide taxpayers and regulators clear guidance and red lines. Partnership for Conservation has, since its founding, sought to put these kinds of solutions on the table.

Enhancing the definition of a “qualified appraisal,” for example, would produce more accurate and well-substantiated valuations. And bolstering the educational requirements to be a “qualified appraiser” would help ensure appraisers have sufficient training and expertise.

In addition, we should inject greater visibility and transparency into the system.

It would be wholly appropriate and reasonable for the Internal Revenue Service to require land trusts and other organizations receiving conservation easement donations to report descriptions and the fair market value of the donations. The organizations could also be required to provide information to the public describing the conservation values of the donations.

In addition, the IRS could adopt the National Taxpayer Advocate’s recommendations to enact policies that would make compliance simpler and easier to understand with clear language for conservation easement deeds. This can keep well-intentioned conservationists out of court and save taxpayers tremendous resources in unnecessary litigation.

There are several additional potential solutions that could strengthen the integrity of valuations, eliminate the potential for abuse and safeguard the market-based incentive to choose conservation.

What is needed is an open dialogue between stakeholders and policymakers about these solutions that puts aside the inflammatory torch and pitchforks rhetoric and talk of punitive retroactivity that dominated too much of the conversation in 2019.

With so much of the activity around partnership conservation slated to reach a head this year, and at such a critical time for the environmental wellbeing of our country, this year will be make or break for market-based conservation solutions.


Webb Creek Donates Land to Hatfield McCoy Regional Recreation Authority

In 2019, Webb Creek donated approximately 1,882 acres of property to the Hatfield McCoy Regional Recreation Authority in Fayette County, West Virginia. The Authority is comprised of over 250,000 acres of land and operates over 700 miles of outdoor trails. This area has served as a tourism destination for off-road enthusiasts across the country who come to enjoy the trails and scenery that the Authority offers. The generous donation that was given to the Authority on behalf of Webb Creek provided the opportunity to further expand and develop this off-rode park for the benefit of All Terrain Vehicles, Utility Terrain Vehicles and Off-Road Motorcycles. As Fayette County and the upper Kanawha valley region has been adversely impacted by the downturn in the coal industry, the funding, operation, and development of a fully functional trail system will provide a substantial economic development boost to the area. Jefferey Lusk, the Executive Director of the Authority, stated in a thank you letter to Webb Creek President, Ronnie Wallace “The property donation will lay the groundwork for future economic development in the Upper Kanawha region of Fayette and Kanawha counties. I know that your organization as part of this donation is truly interested in ensuring that not only the conservation easements on the property are maintained, but also that the donation creates economic opportunity for the residents of the area.”

National Taxpayer Advocate Recommends Stronger Safeguards for Conservation Deduction

by Mattie Duppler February 03, 2020

The passage of last year’s Taxpayer First Act represented a rare bipartisan accomplishment in Washington. The bill made significant steps forward in commonsense reforms to the IRS, including strengthening taxpayers’ right to appeal and modernization efforts that are long past due.

It also reflected a nonpartisan consensus that the IRS should do a better job fulfilling its mission, to: “provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all.”

As the nation’s oldest taxpayer group, NTU has documented when the IRS has fallen short of these goals. Recently, the agency’s harassment of taxpayers claiming the conservation easement charitable deduction has all the tell-tale signs of an overtly abusive campaign. In its 2019 report released last month, the IRS’s own National Taxpayer Advocate cited the IRS’s treatment of these taxpayers as one that potentially impacted three core taxpayers’ rights as delineated in the Taxpayer Bill of Rights: the right to pay no more than the correct amount of tax, the right to appeal an IRS decision and the right to a fair and just tax system.

The Taxpayer Advocate included a discussion of conservation easement contributions under its statutorily-required list of ‘Most Litigated’ cases for the year. In it, the NTA provides suggestions to reduce the number of conflicts before the IRS. Citing the ambiguous nature of IRS enforcement of the deduction, the NTA suggested the IRS provide more explicit guidance either by implementing safe harbors or by providing precise language that would give taxpayers a template for safely claiming the deduction.

The conclusion from the NTA mirrors recommendations NTU has made that would satisfy the important IRS goals of preventing abuse and administering the code in a fair manner. It also reflects a concern we have long documented: that the IRS’s enforcement of the charitable contribution deduction for conservation easements is capricious at best. In fact, the IRS’s practice of litigating without clarification on how taxpayers can claim the deduction has the obvious effect of discouraging its use, in conflict with Congressional intent. On the heels of bipartisan Congressional acknowledgment through passage of the Taxpayer First Act that the IRS must do a better job fulfilling its mission, the agency would be wise to put the suggestions of the National Taxpayer Advocate to immediate use.