Increasing the Tax Incentives for Conservation Easement Donations - A Responsible Approach

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The use of tax incentives to encourage private landowners to donate conservation easements has become increasingly popular as policy makers search for ways to combat the growing problem of urban sprawl. The tax incentives have worked remarkably well to encourage private landowners who have both the will and the means to shoulder a significant percentage of the economic cost of protecting their land through the donation of conservation easements. However, the success of the tax incentive program should not blind its proponents to its inevitable inefficiencies and limitations. Continually increasing the tax incentives in an effort to make them attractive to a broader class of landowners – including, in particular, so-called “land rich, cash, poor” landowners – could have unintended consequences. Thus far, the land trust community has been able to recognize and respond to the challenges presented by the acquisition and long-term stewardship of conservation easements. However, the capacity of land trusts (and the often less well-equipped government agencies) to respond to such challenges is not unlimited. Some easement holders could be overwhelmed if Congress and the states adopt policies that result in a sudden surge in easement donations. Moreover, exploitation and abuse of the tax incentives by profit motivated “donors” could imperil the very existence of the tax incentive program and call into question both the credibility of the land trust community and the use of conservation easements as a private land protection tool. This article undertakes a much-needed critical analysis of the tax incentives designed to encourage conservation easement donations and proposals to increase those incentives. The article ultimately concludes that a responsible approach to increasing the tax incentives is called for: Congress should increase the incentives only if some assurance can be had that the increase will be efficient, that land trusts and government agencies have the expertise and resources to appropriately screen and steward the anticipated additional easements, and that the increase will not encourage exploitation and abuse.

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