Nebraska bill to limit permanence of conservation easements
LINCOLN, Neb. — A bill introduced to the Nebraska Legislature by Sen. Dave Murman of Holdredge, would limit the terms of conservation easements to no more than 99 years and give local elected officials greater authority to approve or deny future easements.
LB 1135 is scheduled to be heard before the Unicameral’s Judiciary Committee on the afternoon of Friday, Feb. 11. Comments for the record can be submitted online by visiting the Nebraska Legislature’s website and searching for the bill number. Comments must be received by noon Central Time on Thursday, Feb. 10.
Nebraska is unique in that local county officials can deny conservation easements in the event that such easements conflict with the county’s comprehensive plans. The expanded authority under LB 1135 would provide an avenue for greater local control and oversight.
On the federal level, the Biden Administration has used executive orders related to climate change in pursuit of his 30×30 agenda. Executive Order 14008, signed one week after Biden took office, has the end goal of placing 30 percent of all U.S. lands and coastal waters placed into permanent conservation by 2030. Political leaders and property rights advocates have said that permanent conservation or preservation easements are the major mechanism for accomplishing the 30×30 agenda.
“We are on the front lines here and that is why we are asking local folks to examine those conservation easements,” Nebraska Gov. Pete Ricketts said at a June 2021 meeting in York. “I can say that if the Biden Administration tries to do something unlawful, we will be on top of it.”
Ricketts was one of the first state governors to raise concerns about 30×30, which has since been rebranded as “America the Beautiful.” After his statewide listening tour, Ricketts hosted county commissioners and ag leaders at the governor’s mansion and signed an executive order to stop 30×30.
The order, among other things, banned the use of state agency discretionary resources to support projects involving perpetual conservation easements. It also requires approval for using state agency resources to fund conservation easements that are for a term of years.
CARROT ON THE STICK
In Nebraska, skyrocketing property taxes continue to be a major concern for landowners, which makes the potential tax incentives that come from placing land in a permanent conservation easement that much more appealing.
This becomes an even greater concern when out-of-state absentee buyers pay over the market value for land, because this raises the valuation basis for a given county and creates a greater burden for the neighboring working family farms and ranches.
Easements can offset those valuation increases and create a mechanism for easement holders to protest tax increases at the individual county equalization boards. More often than not, however, easements tie the hands of local government bodies and hinder their ability to fund basic services like schools, bridges and roads.
According to the Land Trust Alliance, in 2015, congress enacted one of the most powerful conservation measures in decades: the enhanced federal income tax incentive for conservation easement donations. However, improper use of federal income tax deductions for both land and conservation easement donations can involve potentially abusive tax shelters.
As the average age of the farmer and rancher in Nebraska is quickly exceeding 55-years-old, with depressed prices, inflation, and increases to valuation, older landowners are faced with increased pressure to give in and place their land into permanent conservation easements.
A variety of conservation groups have expressed their dismay with the bill in a joint op-ed published in the Omaha World Herald penned by The Nature Conservancy Nebraska’s State Director John Cougher.
“With the introduction of LB 1135 in the unicameral, this conversation is especially timely,” Cougher wrote. “If passed, this legislation will undermine the benefits of easements and diminish landowner control.”
A source with knowledge of internal policy discussions said that increased pressure from Natural Resources Districts across Nebraska means LB 1135 will likely be left on the table this session. That could change, however, especially if the bill receives enough populist support.
As of last week, most of the Nebraska statewide ag groups have yet to release their full legislative positions. Policy insiders have said that LB 1135 would be a welcome step in the right direction, however, some still feel the terms for conservation easements should be limited to 30 years. After all, existing federal conservation incentives through the USDA’s Natural Resources Conservation Service, are normally contracted for five to 15 year periods.
Landowners are obligated to follow the conditions of the contract and the conditions of the contract cannot be changed under normal circumstances. The difference between those programs and perpetual conservation easements: at the expiration of an NRCS contract, landowners still retain the rights to make choices concerning their land use.
While landowners should be free to use their property as they please, there’s a philosophical argument that restricting land use for perpetuity only hurts younger farmers and ranchers.
“You only get one life to farm,” Dawes County rancher Casey Schuhmacher said. “Controlling land from beyond the grave limits the options and opportunities for future generations.”
Approval of lengthy and perpetual conservation easements also ties the hands of future elected officials when it comes to stewarding property tax dollars. It creates scenarios where unpopular county commissioners can approve permanent easements and continue to exercise control over the local government long after they’ve left office.
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