Protecting the Farm Forever With a Conservation Easement–Chapter Two, Securing an Easement Holder
Jeanne and I were successful at getting the county to amend its comprehensive plan so that part of our farm will be classified as urban open space instead of low-density housing. We paid a fee to apply for the change and spoke at two public hearings before the county’s board of supervisors approved it. That was the first step on this pilgrimage to protect the farm forever with a conservation easement (See chapter 1 here). This post discusses the process for securing an easement holder that will forever protect the covenants in the easement document.
Whiskey Creek Angus is a 150-acre farm in Churchville, Virginia. It has some of the best soil in the Shenandoah Valley, two streams, and great views. Photo credit R. Whitescarver
Land Trusts Are Easement Holders
Easement holders, also called land trusts, are private, nonprofit organizations authorized by state governments to hold easements. Units of government can also hold easements. The Virginia Department of Forestry can do so, as can any county that has a conservation easement program, such as Albemarle County in Virginia.
What Will Be Protected and Who Will Protect It Forever?
The most important thing Jeanne and I want is for this farm to remain a farm—forever. In legalese, they use the phrase “in perpetuity.” Conservation easements extinguish most or all development rights. At Whiskey Creek Angus we want to extinguish all of them. That means the property cannot be divided. No one can split off a piece of land from the farm, no one can put in a subdivision or a Walmart—ever. We also do not want this farm to have a concentrated animal feeding operation (CAFO). Our desire is for the farm to remain a regenerative farm, one that produces not only good food but ecosystem services as well such as clean air, water, and wildlife habitat.
For guidance, we contacted Conservation Partners, LLC, an organization that provides support services for easement donors and four land trusts that operate in our region to see which one would best suit our needs. Our first choice was the Virginia Outdoor Foundation (VOF) because we felt they were best able to defend the easement, and they were the most economical.
This riparian buffer along Whiskey Creek was planted in hardwood trees in December of 2021. Photo credit R. Whitescarver
But Wait
“Your farm doesn’t meet the current requirements using VOF’s scoring system that looks at numerous conservation values,” the VOF field representative told me.
My heart sank. That doesn’t make any sense, I thought. The farm has 150 acres of open space. Isn’t that enough conservation value? And besides, we’ve fenced the cows out of the streams, planted riparian forest buffers, and use rotational grazing. The farm is a powerhouse of ecosystem services. Aren’t those worthy conservation values?
But the representative went down VOF’s list of criteria. The farm isn’t on a designated scenic highway, our stream isn’t a scenic river, the land doesn’t protect any threatened or endangered species, it doesn’t adjoin any other protected land, and it has only 19 acres of prime farmland. So why should VOF defend our farm forever? We had to prove our farm worthy of its protection.
Open Space–The Most Important Value of a Conservation Easement
Open space is what makes the Shenandoah Valley legendary. Pastures with grazing livestock, fields of grain, and forests with towering trees provide the scenery we love, and yet these private lands are being converted to concrete, shingles, and pavement at an alarming rate. Nationwide, the current rate of farmland conversion to nonfarm use is 2,000 acres per day according to the most recent report from the American Farmland Trust.
Open space is what allows rain to recharge groundwater resources. Underlying the beautiful vistas of farmland and forests is soil. Soil is the regulator of the hydrologic cycle, and well-managed open space produces clean water.
Laura Thurman, VOF Senior Conservation Specialist with VOF, and Jeanne walk the farm in preparation for our conservation easement. Photo credit R. Whitescarver
Our Farm Produces Clean Water
Laura Thurman, Senior Conservation Specialist with VOF helped us discover the conservation values we needed to meet its requirements. We found out that our entire farm is in the recharge area of two public wells that serve the Churchville area. Years ago, leaders in Augusta County realized that it was important to make regulations to protect the water in such recharge areas. They created Source Water Protection Overlays and ordinances to regulate land use in these areas. VOF now had at least one good reason to protect the open space on our farm.
Prime Farmland and Farmland of Statewide Importance
Before Jeanne and I bought the farm, we walked every field with one of the owners. I had my soil app open on my phone, and as we walked, I would tap the Get Soil button. “Oh my gosh!” I said over and over. Bookwood Silt Loam, Shenval Loam, Frederick-Christian Silt Loam . . . . This farm has the best soil in the Shenandoah Valley. These are all deep, well-drained soils. If these soils lay relatively flat, the USDA classifies them as Prime Farmland. If they are on a slope that’s not steep, they are classified as Farmland of Statewide Importance. The farm is 150 acres; 19 of those acres are Prime Farmland and 86 are Farmland of Statewide Importance.
This is the soil map of Whiskey Creek Angus. Soil map symbols 10B2 (Bookwood silt loam), 40B2 (Frederick-Christian loam), and 75B2 (Shenval silt loam) are classified by USDA as Prime Farmland. Soil map symbols 10C2 and 40C2 are classified as Farmland of Statewide Importance. Photo credit USDA.
Threatened and Endangered Species
VOF’s database didn’t show any threatened or endangered species on the farm. But when we entered into contracts with the Headwaters Soil and Water Conservation District to install riparian forest buffers, that organization had had to search for such critters. They reached out to the Virginia Department of Conservation and Recreation. Their database showed our farm has or is close to, habitat for five listed species: Madison Cave Isopod, Eastern Tiger Salamander, Slimy Sculpin, Eastern Red Bat, and the Eastern Spotted Skunk. Bingo! Another check in the box.
All Conservation Easements Are Unique
After we proved the farm worthy of permanent protection, we began negotiations about the language in the easement document. We wanted no divisions of the property, no more dwellings, riparian forest buffers, and no CAFOs. VOF wanted us to host at least one educational event per year to showcase the conservation values. VOF’s agents drafted a document specifying all such details and sent it to our lawyer and to its legal team. After several rounds of wordsmithing, we arrived at a mutually acceptable document.
To the VOF Board
The next steps are for us to pay an application fee of $1,500 and for our VOF staff–approved conservation easement to go before the VOF board of directors for approval. Once it approves the easement, we will have one year to record the deed of easement at the courthouse. Then the easement will become a legal document that stays with the land no matter who owns it.
Next Up: Tax Benefits of Conservation Easements
We will consult with our tax adviser and our lawyer to determine the best time to record the easement. Once that is done, we will begin to use the federal tax deductions and Virginia’s tax credits. I’ll write about these in chapter three of this series.
Want to Find Out More?
I’ll be glad to help. Simply reply to this post, or give me a call at 540-280-7134. You can also contact these fine organizations:
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