PROTECTING AMERICA'S LAND LEGACY
STEWARDSHIP POLICIES, TOOLS, AND INCENTIVES
TO PROTECT AND RESTORE AMERICA'S LAND LEGACY
Preface
The Environmental Financial Advisory Board
(EFAB), through its Strategic Action Agenda,
previously has prepared a variety of reports
suggesting innovative ways to finance EPA's
watershed protection programs. This work has
resulted in the following publications:
• Recommendations and Final Report on
Opportunities for Financing the Clean Water
Action Plan (July 1999)
• Environmental State Revolving Fund:
Developing a Model to Expand the Scope of the
SRF (June 2001)
• Guidebook of Financial Tools
(http://www.epa.gov/efmpage/guidbkpdf.htm)
The central premise of EPA's watershed work is that
the integrity of the land determines the integrity of our
nation's waters. This paper focuses on the concept of
stewardship as an important means to protect and
restore America's land legacy in furtherance of EPA's
watershed approach.
The management and use of our public lands is
dictated by a long history of laws and regulations. The
management and use of the private lands largely is
legislated by local police powers and land use
authorities (zoning, conditional use permitting) although
federal and state laws (i.e., the Clean Water Act and
the Endangered Species Act) sometimes control uses
of private land, as well. Moreover, the use of private
land is driven by economic conditions and market
prices: specifically, the availability of capital and
interest rates.
These laws and economic forces will continue to be
primary motivators concerning the use of real property
in America; however, they can be, and should be,
supplemented by the long-standing American value of
conservation of our lands. The concept of
stewardship—as an ethic and as a practice—can
give strength and cohesion to the conservation
movement, and can serve as an essential supplement
to our system of legal authorities and economic
systems.
But what is stewardship and how can it be applied in
service of conserving our land legacy and protecting
our watersheds?
In Chapter 1, we set forth the essence of
stewardship, the principles to guide stewardship, and
a framework for planning a nationwide approach to
stewardship.
In Chapter 2, we explore an open-ended compilation
of policies and tools that support stewardship as an
ethic and that stimulate positive social responsibilities.
In Chapters, we explore an open-ended compilation
of policies, tools, and incentives that support
stewardship as a practice and that enable positive
economic and environmental outcomes.
In Chapter 4, we explore how the acquisition of
various interests in the land may significantly support
stewardship efforts and provide substantial leverage to
funds available for acquisition investment.
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In Chapter 5, we offer a set of broad
recommendations for consideration by the
Administrator of EPA.
TABLE OF CONTENTS
CHAPTER l^THE ESSENCE OF
STEWARDSHIP
Introduction
Opportunity and Vision
The Context of Land
The Essence of Stewardship
Principles for Stewardship
Framework for Planning
Stewardship as an Economic Enterprise
CHAPTER STOOLS THAT STIMULATE
POSITIVE RESPONSIBILITY
Information
Education
Recognition and Rewards
Partnerships and Cooperative Efforts
Mediation
Certification Systems
Environmental Management Systems
CHAPTERS—TOOLS THAT PROMOTE
POSITIVE ECONOMIC AND
ENVIRONMENTAL OUTCOMES
Cost Sharing Management Agreements
Tax Incentives
Federal Programs and Policies
Assurances
Loan Programs
Mitigation Measures
CHAPTER 4—INTERESTS IN LAND AND
THE POWER OF LEVERAGE
Conservation Easements
Transfer of Development Rights
Transfer of Water Rights
Life Estates and Remainder Interests
CHAPTER 5—RECOMMENDATIONS
APPENDIX—EFAB STEWARDSHIP
ROUNDTABLE
REFERENCES
CHAPTER 1
THE ESSENCE OF STEWARDSHIP
INTRODUCTION
America is experiencing continuing growth in
population and prosperity. The question of where
these people will live and work, and how their needs
for food, fiber, water, energy, affordable housing,
urban infrastructure, transportation, and education will
be met, all bring into sharp focus the compelling need
to protect and conserve America's land base. At the
dawn of the 21st century there is a growing public
awareness that our continued prosperity depends on
the integrity of our lands and the habitats and
ecosystem services theyprovide. There is an inchoate
yearning for community, environmental quality, and
"quality of life."
Much of this interest and activism about the
environmental integrity of our lands, habitats,
ecosystems, ecosystem services, and the sustainabiliry
of these resources for present and future generations
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has been made manifest by the acquisition of lands for
permanent protection and conservation. Local and
regional land trusts, conservancies, and open space
districts are the primary players, along with national
land trusts and state and federal land and resource
management agencies. This mosaic of organizations
and agencies, often working in concert, has
accumulated an impressive portfolio of successes by
acquiring, managing, and conserving valuable lands.
But the acquisition of lands cannot, and should not, be
the only means to conserve our land legacy. While the
acquisition of lands must continue, we also need to
establish a framework to create a broader sense of
responsibility, public and private, for land stewardship
and conservation.
We have an obligation to act now to conserve our
land legacy for the benefit of present and future
generations. This opportunity is not open-ended. The
inexorable trends of continuing population growth,
expanding urban and suburban footprints, dispersed
development, conversion of agricultural lands,
fragmentation of lands, and the loss of habitats and
species diversity narrow the window of opportunity
every day. This calls for concerted action now, but
within the context of a long-term framework.
The purpose of this paper "Stewardship Policies,
Tools, and Incentives to Protect and Restore
America's Land Legacy" is to set forth principles
and a broad policy framework, along with the tools
and incentives, to guide the long-term process of
conserving our land legacy and restoring the vital
functions that the lands may support. It further sets
forth the strategic direction to instill the ethic and
practice of stewardship on our public and private
lands.
OPPORTUNITY AND VISION
We have now a compelling opportunity to create and
instill a land ethic - a stewardship ethic - to guide the
protection and use of our lands. A stewardship ethic
is applicable to the 70% of America that is held in
private ownership, as well as the holdings of public
lands. The private holdings in our urban, or urbanizing,
areas create essential economic product and sustain a
vital array of social values. These lands can be
developed and used pursuant to a stewardship ethic
with responsible land use policies and practices. The
private holdings in rural areas can be characterized as
"working landscapes"--farms and croplands, ranches
and pastures, timber operations and forests,
watersheds and fisheries-that comprise the mosaic of
our landscape, culture, and economy. These lands
also generate economic product. Moreover, they
include viable habitats, biodiversity, functioning
ecosystems, and they provide ecosystem services.
They provide open space and scenic vistas. These
private lands are an essential part of America, and
properly managed by their owners with a stewardship
ethic can produce lasting and sustainable value for all.
The focus on the integrity of the land inherently
incorporates the integrity of our nation's waters, air,
and climate—matters of direct and compelling interest
to the Environmental Protection Agency and the state
environmental programs. By embracing a stewardship
ethic and working to develop and implement
stewardship practices, EPA may significantly enhance
its mandated mission in support of growing public
values. It can enhance its regulatory and enforcement
agenda by supporting voluntary stewardship practices,
economic incentives, and other highly leveraged tools.
Stewardship practices can be the core means to
implement the watershed strategies of the Clean
Water Action Plan and to develop sustainable
financing systems to meet future needs for clean
drinking water and wastewater treatment.
The opportunity to protect and conserve our "working
landscapes" must build upon the long-standing and
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wide-ranging portfolio of conservation programs
administered by the US Department of Agriculture.
These programs were first given specific direction and
significant funding in the Food Security Act of 1985.
Congress has recently passed a new farm bill to
reauthorize the Food Security Act and to strengthen
agricultural lands conservation programs. These
programs are especially noteworthy and compelling in
that they declare land conservation and stewardship
practices to be national policy.
THE CONTEXT OF LAND
The concept of land simply as real property needs to
be broadened considerably to encompass the view of
land as a natural resource, with its capacity to sustain
viable habitats, biodiversity, functioning ecosystems,
and ecosystem services. Our vision of land should
include land as "watersheds" incorporating the
fundamental interdependence of land and water
resources and the expectation that land can provide
open space, scenic vistas, recreational opportunities,
and support spiritual values. Not all of these attributes
of land currently are incorporated in our national
economic analysis of the value of land, yet these
attributes are immensely valuable.
In advancing a framework for land stewardship, one
must necessarily use the established language of real
property ownership: land-as-property, public
ownership, private ownership. But our interest is not
focused on real property per se or even specific
ownership patterns; rather, our interest resides in the
ecological values of the land, the integrity of
watersheds, and the need to conserve our land legacy.
We need to expand our current truncated view of
land-as-property to a new view that all lands, public
and private, have inherent value as natural resources,
as natural capital, and as signature elements of the
landscape.
THE ESSENCE OF STEWARDSHIP
Continued prosperity depends on our ability to
protect the resources of our natural heritage and to
learn to live in ways that do not unduly diminish the
land; indeed, we can develop and use our land in
ways that nurture, enhance, and sustain it.
Stewardship is at the core of this obligation.
Stewardship calls upon every one in society to assume
responsibility for protecting the integrity of natural
resources and ecosystems and, in so doing, to
safeguard the interests of future generations. Without
personal and collective commitment, without an ethic
based on acceptance of personal responsibility, efforts
to sustain natural resources protection and
environmental quality cannot be fully successful.
"A conservation ethic is that which aims to pass on
to future generations the best part of the non-human
world. To know this world is to gain a proprietary
attachment to it. To know it well is to love and take
responsibility for it."
Edward O. Wilson
The Future of Life
In its traditional usage, stewardship referred to
administering land on behalf of others. In our more
current usage, stewardship is about caring for and
conserving land on behalf of current and future
generations. Stewardship is defined as an ethic of
respect for the inherent values of healthy natural
systems and as a practice that sustains those benefits
for current and future generations.
Stewardship is therefore embodied as both an ethic
(a set of beliefs) and as a practice (a set of
behaviors). The ethical and practical aspects of
stewardship operate to reinforce each other; the ethic
informs the practice; the practice enriches the ethic.
1. Stewardship as an Ethic
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The stewardship ethic seeks to conserve land and
sustain and enhance natural systems for the benefit of
succeeding generations. Stewardship is a set of
beliefs or values shaped by information from a
multiplicity of cultures, disciplines, and other sources.
A stewardship ethic can be embraced by various
entities: an individual, an enterprise, a community, or
a governmental agency.
2. Stewardship as a Practice
The practice of stewardship is a voluntary endeavor
on the part of the landowner. It is shaped by many
factors: prevailing laws, regulations, and codes;
economic policies and market forces; and societal
values. Stewardship practices may also be "best
management practices." Stewardship practices are
encouraged and supported by information, education
and applied knowledge, recognition and rewards,
technical assistance and peer review, financial
incentives, tax policies, public investment policies, and
governmental assurances.
PRINCIPLES FOR STEWARDSHIP
A framework for stewardship should be guided by a
set of higher order principles that promote the
common good and that all of society can support.
These principles should guide the planning and
decision-making process for land use and
conservation, and should contribute to a sense of
fairness, equity, and common purpose.
PRINCIPLES:
Respect property rights
The use and enjoyment of private property, private
resources, and private rights should be respected. In
the United States, private property is both protected
and regulated to achieve objectives of the larger public
interest. This balance of protection and regulation is
essential to the legal integrity of land conservation
efforts.
Use best available science
Planning and decision-making regarding land
conservation and stewardship should be informed by,
and reflect, best available science.
Respect the rule of law
Laws and regulations affecting the use of lands and
their resources should be respected and equitably
enforced. However, we should work with
governments to identify and change laws and
regulations that discourage stewardship.
Avoid conflicts
Planning and land regulation should seek to avoid or
prevent conflicts between human habitation patterns
and natural processes and functions such as seasonal
flooding and regenerative fire.
Employ economic efficiency tools and market
approaches
Efficient economic utilization of lands, within the
established footprints ofurban/suburban extent, should
be the foundation of public land use policy in support
of stewardship.
Positive incentives (financial as well as non-financial
such as regulatory and permitting reforms) should be
created, pursued, and aligned in support of
stewardship practices, with comparable attention
given to the removal of disincentives and barriers.
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A "willing seller" should always be preferred in a
public acquisition; with land valuation based on
considerations of fair market value and comparable
land values that prevail in the local market at a given
time.
Apply the power of partnerships
Partnering efforts among public lands managers at the
federal, state, and local levels, private owners and
operators, private land trusts, land conservancies, and
philanthropic organizations should be fully engaged to
gain leverage and to lend collective power to
conservation efforts. Peer review techniques, sharing
of knowledge and best practices should be widely
encouraged.
Create multiple benefits
Multiple benefits in the land should be sought
wherever possible; including habitat protection,
ecological services, agricultural productivity, source
water protection, public safety, flood control, historical
and archeological protection, recreational
opportunities, and open space and aesthetic values.
The integrity of the land itself (soil mantle, soil tilth,
fertility, and vegetative cover) should receive priority
consideration for protection and conservation.
The integrity of watershed lands should be protected
and maintained, and where necessary restored, to
ensure the quantity and quality of surface waters and
groundwater to provide essential present and future
water supplies. Watershed-based source protection
should be a priority to enable America to minimize the
costs of downstream drinking water treatment.
Watercourses, riparian zones and wetlands should
receive special protection due to their value for water
quality enhancement, fishery production, habitat,
aquatic and terrestrial diversity, runoff water
conveyance, and flood water detention.
Lands protected and conserved in public ownership,
wherever appropriate and feasible, should provide
access for public use and enjoyment. Public lands
should be used appropriately for the education of
school children and the general public. Certain lands,
such as wildlife refuges, may warrant use limitations to
protect resources. Conservation easements held in
public ownership may have public access restricted to
respect adjacent private interests.
Seek and utilize local advice and experience
Whenever possible, the active support, knowledge,
experience, and cooperation of people who live in and
around important natural areas should be secured to
improve the chances of successful land conservation
efforts.
Enabling people to "stay on the land" as stewards and
responsible owners and operators of working
landscapes should be encouraged and supported
wherever appropriate.
Consider an ecological scale
Adjacent lands, both public and private, should be
aligned and "linked" wherever feasible to create
protected wildlife corridors and seasonal habitat.
Adjacent lands, both public and private, should be
managed and protected wherever possible within an
appropriate landscape scale to enable ecological
processes to operate and where natural dynamics can
help assure the maintenance of long-term ecological
health.
Apply a sense of heritage
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The practice of stewardship to conserve our public
and private lands should be consciously applied for the
benefit of future Americans - their heritage is the land
legacy we bequeath to them.
Assertive action today to conserve America's finite
lands should preserve options and opportunities for
tomorrow.
FRAMEWORK FOR PLANNING
A long-term planning framework, incorporating the
principles above, should be developed within the
context of the host of policies and considerations that
shape America's landscape. A national stewardship
policy could be framed within existing consideration
of:
• Regulation of the use of private lands
• Stewardship of private lands
• Stewardship of public lands
• Acquisition of private lands and easements
1. Regulation of the Use of Private Lands
Public regulation of private lands is an important policy
tool to promote the ethic and practice of stewardship.
A planning framework for land conservation should
align with, and build upon, the existing system of
public regulation of the use of private lands.
The use of private lands is governed by a panoply of
laws and regulations: local authorities (zoning, use
permits, codes); state land use and planning codes
(Subdivision Map Act): federal and state
environmental rules (wetlands protection, storm water
runoff); and federal laws (Endangered Species Act).
The regulatory system can encourage land
conservation and the management of natural resources
while creating economic benefits. The regulatory
system can also discourage or even prohibit the loss of
important and valuable habitats such as the regulation
that prohibits the filling of wetlands. It is essential that
regulations be coordinated across adjacent
jurisdictions to reinforce a regional planning template.
It is also important to seek the appropriate balance
between regulatory oversight and the ability of
landowners to utilize their land for their purposes.
Regulation of land use through zoning (often
complemented by a program of civic action and local
expenditures) can effectively create open space and
enhance habitat values; witness the greenways, urban
creeks, riparian zones, wetlands, buffer zones, and
parks that enhance the urban environment and create
habitat opportunities. The combination of regulation
and local public investment has considerable power
and potential.
The regulatory system, with its complex statutory
requirements and often duplicative and conflicting
rules, is in need of modernization and reform to more
effectively promote the ethic and practice of
stewardship. Regulatory action by each of many
regulators can present a formidable barrier to those
landowners seeking to implement stewardship
practices. Streamlined regulatory reviews, while
honoring the statutory intent, can greatly assist
landowners willing to exercise conservation and
stewardship on their lands. Coordinated regulatory
reviews for restoration and environmental
enhancement projects should become common
practice.
2. Stewardship of Private Lands
Roughly 70% of the land base in America is held in
private ownership. We need to acknowledge the
many private landowners and families across the
country that have practiced good stewardship of their
lands. Stewardship has been accomplished despite
formidable economic barriers. Still, there is
considerable untapped potential to engage the private
sector in the long-term enterprise of conserving our
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land legacy. A means to this end is to instill within all
landowners the ethic and practice of stewardship of
private lands.
In the regulatory and enforcement culture of America,
stewardship has been largely discounted as a land
conservation policy. However, there is power in the
passion of individuals and communities for conserving
lands. In order to mobilize this passion to conserve
lands, private landowners must be treated fairly. We
should not expect current landowners alone to redress
the mistakes of the past, nor should they be expected
to carry the full burden of providing for future
generations. We must not expect landowners to
absorb the full costs of measures that create public
benefits (e.g. managing their land to sustain robust
habitats, dedicating their land to wildlife corridors and
vital habitat linkages, or foregoing development to
sustain open space and scenic vistas.)
Private stewardship of private lands should be
supported by an array of tools, incentives, and
methods. Specifically, the full set of positive financial
incentives and tax policies should be utilized. Just as
important, barriers and disincentives to stewardship of
private land should be removed. A just and reliable
measure of economic and regulatory certainty should
be assured to landowners acting as good stewards.
Ultimately, the ethic and practice of stewardship of
private lands is a joint public-private enterprise.
Private landowners, as stewards, manage and care for
their lands to create long-term public benefits. Public
resources are deployed in support of, and in partial
compensation for, private stewardship practices.
Working together, America's land legacy may be
effectively conserved.
3. Stewardship of Public Lands
Roughly 30% of the land base in America is held in
public ownership. This fraction will incrementally
increase as a result of continuing active land
acquisition programs. These public lands largely
consist of federal holdings such as national forests (in
the mountain regions) and public domain (in the
deserts), along with national parks, state parks, local
parks, and open space holdings.
Lands currently held in public ownership and managed
in the public interest should receive quality care,
infused with the best practices of stewardship and
informed by the best available science. Substantial
deferred maintenance and unmet needs are now
evident on our public lands. Restoration of
diminished, damaged, or lost natural resources should
become an investment priority sustained over the long
term to heal the damage and restore the functions and
values of these lands and their habitats.
In planning new land acquisitions, a reasonable
provision for any necessary restoration and long term
care and stewardship should be included in the
investment decision.
4. Acquisition of Private Lands and Easements
Acquisition maybe the most familiartactic to conserve
lands, although it is not the only one or sometimes the
best one. However, it is a very powerful and critical
instrument in the overall strategy for land conservation.
Acquisition in fee simple absolute secures full title of
real property, usually in public ownership as a unit of
a park, reserve, open space, forest, etc. This can
assure permanent protection and public access.
However, it often comes with an imbedded economic
obligation for maintenance and restoration. Due to the
extraordinary initial cost, usually only top priority
lands, critical habitats, and/or "once in a lifetime
opportunity" properties can be protected by
acquisition.
Acquisition in fee simple increasingly is giving way to
purchase a partial interest in a property, such as a
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conservation easement, development right, watertight,
or greenway easement. Less-than-full-fee acquisition
can be very cost-effective. It can eliminate the
development potential (and development value) from
the land leaving the underlying land in private
ownership and care, but furthering the opportunity to
develop and sustain working landscapes. Also, and
very importantly, the income from the sale of the
easement can help landowners pay debts, modernize
for efficiency, and improve their land for the next
generation.
Lands initially acquired are often re-sold to a party
who will practice stewardship while maintaining
economic production as a working landscape. The
resale agreement often includes a management
obligation, imbedded in the deed, for the continuing
stewardship of the land. And, of course, the resale
proceeds replenish capital that can be used for other
acquisition investments.
There is a strong tradition of private giving through
philanthropy where private wealth is transferred or
bequeathed to a public entity or to a non-
governmental organization (NGO) for stewardship
purposes. The gift is often land. Sometimes liquid
assets are transferred; these funds can be used to
acquire new lands. These transactions are often
motivated in part by tax considerations. A strategy for
land conservation should incorporate this tradition,
and enhance it with specific changes to the tax code.
Facilitating the transfer of lands (or liquid assets for
land) for the protection of land conservation is in the
public interest and is, therefore, an appropriate subject
of tax policy.
STEWARDSHIP AS AN
ECONOMIC ENTERPRISE
There is a growing appreciation that the practice of
stewardship yields considerable economic value. This
economic value is often indirectly manifested as
"costs avoided", but the value may also be accounted
for directly. Where there is economic value, there are
opportunities to enhance, finance, and leverage such
values for even greater economic and social good.
Environmental financing techniques are being explored
in association with the compendium of tools and
incentives examined in Chapter 3 of this report.
Of primary interest to EPA, the practice of
stewardship yields an impressive ledger of "costs
avoided" in the watershed-based water quality
protection programs. The integrity of the watershed
lands determines the integrity of the waters. The
application of good stewardship practices to the land
should result in the prevention of soil erosion and the
reduction of runoff of nutrients and pesticides from
cultivated lands or rangelands. Reduction or
prevention of the pollution loadings to steams and
rivers directly reduces or avoids the costs of needed
treatment for after-the-fact cleanup. These costs of
cleanup—regulatory and compliance costs, capital
investments, operations expenditures, and restoration
costs—are significant. To the extent they can be
avoided or minimized, society will benefit.
In like manner, the practice of stewardship can protect
the ability of ecosystems to perform their vital
functions and to preserve and protect the economic
values presented by these "ecosystem services."
Ecosystems provide a range of "services" that are just
beginning to be understood: climate regulation,
production of clean source waters for drinking, storm
water retention and water quality enhancement
(through wetlands and marshes), the production of
food, fodder and fiber, the production of
pharmaceutical chemicals, biodiversity, etc. These
"ecosystem services" are provided by nature
essentially for free. For mankind to replicate such
services would entail untold costs (if it were even
possible). The practice of stewardship of our lands
and waters is an important feature of protecting
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ecosystem services, and therefore presents immense
value to society. Research is underway to more
thoroughly document the value of ecosystem services
and to develop financial instruments and incentives to
insure their protection.
The practice of stewardship can directly create
significant value in economic and environmental
benefits, as well as cultural and spiritual rewards. The
practice of stewardship can result in:
Enhanced property values
Increased productivity of the land or natural
resource asset
• Improved bottom-line performance
Improved financial ratings and shareholder
satisfaction
• Enhanced value in watershed integrity, water
availability, water purity
Enhanced value in habitats and biodiversity
• Enhanced value in functioning robust
ecosystems
• Increased numbers of "best practices" that are
friendlier to our lands
Enhanced quality offarmlands to be passed to
future generations
• Enhanced quality of life through spiritual
connectedness to the land.
In summary, the practice of stewardship yields
economic value in "costs avoided", and produces
direct values and benefits to both the public and
private sectors. The growing portfolio of tools and
incentives to promote the ethic and practice of
stewardship, along with the dedication of substantial
public and private funding, will certainly attract
financing mechanisms to enhance and leverage these
investments for greater social good. The traditional
expenditures of one-time appropriations to support
these incentives will give way to new concepts of
sustainable investment and environmental finance.
CHAPTER 2
TOOLS THAT STIMULATE
POSITIVE RESPONSIBILITY
This chapter is intended to be an open-ended
compilation of possible tools, methods, and
incentives that can be useful to help implement
stewardship practices. Most of these tools
currently exist and are utilized across the country.
New tools are being developed and tested
continually by innovative stewards; therefore, the
tools presented here likely will change over time.
INFORMATION
The ethic and practice of stewardship requires an
information-rich environment. Effective
communication of information can impact
perspectives, behavior, practices, and decision-
making. To enable private landowners to manage
their land as stewards, information should be available
to:
• Inform owners about natural resources and
valuable ecological sites and habitats on their
property, including the presence of
endangered species;
Inform owners about methods available to
protect, enhance, manage, and/or conserve
such resources and enhance ecological values
on the property;
Enable owners to find competent advice and
technical assistance;
• Enable owners to locate available financial
assistance, including cost-sharing programs,
low interest loans, grants, etc.;
• Inform owners how to form partnerships with
governmental agencies and NGOs;
Inform owners about how private property
can be held, conserved, and transferred to
heirs in a stewardship-friendly manner.
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Stewardship information must be carefully and
purposefully assembled, packaged, targeted, and
presented. The delivery mechanism of the information
must be considered as carefully as the message itself.
The messenger is often just as important as the
message itself. The usual practice of "getting the word
out" needs to be supplemented by "getting the word
in". Locally based peer groups and open engagement
of neighbors can often be more effective than outside
experts.
Thoughtful communication will build trust among
stewards and their communities, rally people around
a common cause and encourage local ownership of
stewardship proj ects. The tenor of discussions about
stewardship must move from blame to responsibility.
EDUCATION
Of all the resources available to sustain the future of
humankind, information is the only one that
systematically increases over time. The profusion of
information about stewardship should be synthesized
and delivered as an educational program to instill an
ethic of stewardship.
The objectives of such an education program are:
To increase basic literacy about stewardship;
To instill in all our citizens an appreciation of
the history, culture, tradition of our lands;
• To develop individual awareness of - and
responsibility for - the integrity of natural
resources and ecological processes;
• To strengthen and enrich the scientific
underpinnings of our understanding of
ecological systems.
Education about stewardship of our lands must begin
early in our nation's schools. While it is important to
educate current landowners, including public, private,
individual and business owners, about stewardship of
the lands they own, the landowners and business
executives of tomorrow are in classrooms today - not
only in our elementary and high school classrooms but
in our college and graduate programs as well. Many
schools include stewardship in their curriculum. All
schools should be encouraged to teach stewardship at
every level.
Such environmental literacy programs will produce
enormous benefits over time. In the course of a
generation, we can instill the ethic and practice of
stewardship as a normative standard for individual and
enterprise behavior.
RECOGNITION AND REWARDS
The ethic and practice of stewardship can be
advanced by the use of recognition and rewards. Any
individual or enterprise that implements stewardship
practices ought to enjoy the recognition and support
of their peers and community. Certain rewards are
financial and manifest at the bottom-line; but peer
recognition of individual responsibility is a most
powerful incentive that reinforces the prevailing social
value and ethic of stewardship, as well. A
proliferation of recognition and rewards currently
exist. They simply need to be employed to specifically
recognize exemplary stewardship practices.
PARTNERSHIPS AND
COOPERATIVE EFFORTS
Individual efforts to practice stewardship can be
significantly enhanced by cooperation and
collaboration with others in a joint endeavor. These
alliances should be encouraged and supported to
create viable partnerships working toward
stewardship goals. Partnerships also can further the
goal to educate about stewardship and create a "ripple
effect" of individuals or entities that then may be willing
to partner with others who might be reluctant to
undertake a project alone.
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1. Cooperatives
Increasingly landowners, farmers, ranchers, and others
are organizing themselves into cooperative groups in
an alliance with regulatory authorities, NGO's, and
academics in order to promote land management and
stewardship practices. The advantages of these
associations are that participants receive technical
assistance, information, peer support, and a network
of people to work with as they change from traditional
practices to new stewardship practices.
A prime example of this trend is the shift to increased
use of biologically based farming techniques and the
integration of these practices with natural resources
management and wildlife conservation efforts.
Specific organizations have emerged: California
Certified Organic Farmers (CCOF); Community
Alliance of Family Farmers (CAFF); Biologically
Integrated Orchard Systems (BIOS); Biologically
Integrated Farming Systems (BIFS). These types of
cooperatives/associations can create some
comprehensive alignment-of-intereststo systematically
support a stewardship ethic.
The Western Governors Association (WGA), through
its ongoing activities in support of management of
western lands, has formed many noteworthy
partnerships and cooperative ventures. The States,
the USDA Natural Resources Conservation Service
(NRCS), Local Resource Conservation Districts
(RCD), and various partners-in-conservation are
actively working to promote the implementation of
new approaches to private land conservation in the
west.
2. Natural Community Conservation
Planning (NCCP)
NCCP organizations promote a new cooperative
approach to stewardship and ecosystem management
(especially for endangered species) that brings
together developers, NGO's, and various levels of
governmental regulatory authorities in a problem
solving collaborative.
An NCCP focuses on whole natural communities,
rather than reacting to conservation problems on a
project-by-project or species-by-species basis. This
approach encourages the protection of hundreds of
species by thousands of landowners at a time. In San
Diego County, for example, the NCCP will serve as
a blueprint that will ultimately result in the protection
and restoration of some 172,000 acres of native
habitats that are home to more than 85 rare and
endangered species. The preserve system will be
assembled from existing public land, properties set
aside as part of the land development process, and the
acquisition of private lands by local, state, and federal
groups and agencies. This San Diego NCCP is of
true historic proportions because it marks the first time
that stewardship and conservation values, instead of
development desires, have drivena local land-use plan
of such size and scope.
3.
Watershed Councils
Watershed councils in various forms and with various
purposes have emerged as mechanism to facilitate
locally place-based ecosystem conservation. These
may be private nonprofit organizations, but they
usually take the form of multi-stakeholder
organizations with diverse governing boards that can
involve environmentalists, ranchers, farmers, business
interests, and representatives from local, state, and
federal resource agencies. While the success of
watershed councils often depends on funding and
some dedicated staffing, they have great potential to
promote the ethic and practice of stewardship within
their watersheds.
MEDIATION
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Difficult environmental disputes created by
development proposals and the needs of endangered
species, or those involving substantial tradeoffs in
environmental values and economic costs, increasingly
are being resolved by means of mediation by neutral
third parties. Mediation can encourage the parties to
commit to protect resources; negotiate land exchanges
and easements; modify rules; and educate other
landowners in the merits of stewardship practices.
The agreements are often voluntary, but can also be
structured as binding. The most notable example of
this approach is the historic New York City watershed
agreement: the City agreed to manage the public and
private lands in the watershed of the City's reservoirs
to protect the quality of the source waters; the
Environmental Protection Agency agreed to suspend
the requirements for expensive filtration treatment of
the City's water supply. Water quality is assured,
substantial costs are avoided, and the watershed will
be managed for long-term stewardship.
CERTIFICATION SYSTEMS
The ethic and practice of stewardship can be
supported substantially by a new evolving system of
certifications. The certification is a "warranty" to
consumers that a product, and/or the manner in which
a product is produced, honors established criteria
reflecting good stewardship practices. Certifications
are often subject to third party audits and /or oversight
of a certification council such as the Forest
Stewardship Council, Organic Foods Council, Marine
Stewardship Council. Certification affords an
economic and market advantage to those practicing
stewardship in that it directly shapes consumer-buying
patterns.
ENVIRONMENTAL MANAGEMENT
SYSTEMS (EMS)
Enterprises that engage in a comprehensive internal
audit and assessment of their production processes
(i.e., an Environmental Management System modeled
on ISO 14000 series or other suitable template) may
be able to determine appropriate practices of
stewardship for each step of their operations.
Seemingly minor improvements can accumulate over
time and make a substantial contribution to an overall
practice of stewardship, as well as support the
concept that stewardship makes "good business
sense." The power of an EMS is enhanced by the use
of third party auditors and formal certification, and full
transparency to enable accountability and trust.
CHAPTER 3
TOOLS THAT PROMOTE
POSITIVE ECONOMIC AND
ENVIRONMENTAL OUTCOMES
This chapter is intended to be an open-ended
compilation of tools, methods, and incentives that
can be useful to help implement stewardship
practices. Most of these tools currently exist and
are utilized across the country. New tools are
being developed and tested continually by
innovative stewards; therefore, the tools presented
here likely will change over time.
COST-SHARING
MANAGEMENT AGREEMENTS
Private landowners who wish to conserve their land
and apply stewardship practices may voluntarily enter
into a cost-sharing management agreement with a
government resource agency. Management
agreements contain structured economic incentives to
support and reward the landowner's stewardship
practices.
Many of these economic incentives are derived from
agricultural policy set forth in a series of progressive
federal legislative measures (characterized here as
"Farm Bills"). The Farm Bills contain the essence of
stewardship: they ensure the long term environmental
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health and productivity of the land; keep farmers,
ranchers, and foresters on the land; and provide
financial assistance to private land owners as they
work to create public benefits.
The accumulated experience over the last 15 years in
implementing the Farm Bills reveals an extraordinary
(and often unrecognized) success story for
conservation and stewardship. The Nation has
benefitted by decreased soil erosion, protected and
restored wetlands, wildlife habitats, improved water
quality, and absorption of excess carbon from the air,
all while sustaining working landscapes and
maintaining viable livelihoods.
Management agreements are based on models of cost
sharing. Public funds are proffered in response to
private matching or cost-sharing formulas; private land
thereby is used to create public benefit. As such, cost-
sharing mechanisms convey a sense of public-private
shared responsibility and mutual benefit. Moreover,
the cost sharing and matching provisions enable
substantial leverage to be obtained from the public
investment.
Various programs exist, as authorized by the Farm
Bills, and some are described generally below.
1. Conservation Reserve Program (CRP)
The Conservation Reserve Program, enacted in the
1985 Farm Bill, provides annual rental payments to
farmers who voluntarily remove cropland from
production on highly erodible or otherwise
environmental sensitive terrain and plant a cover crop
of grasses or trees for a minimum period of 10 years.
In addition, the farmer must complete, with a 50%
cost-share, certain conservationmeasures over the life
of the contract. The annual rental payments are based
on a bidding process to determine the payment for
taking land out of production; the maximum rental
payment is $50,000 per person, per year. Rental
payments are not counted against payment limitations
applicable to commodity price support and production
adjustment programs. Once enrolled, the land cannot
be farmed for the duration of the contract (usually 10
years).
Amendments to the 1990 Farm Bill added a new
program designed to improve water quality by
encouraging landowners to establish buffers on
croplands to reduce the nutrients and chemicals that
flow from the farms into water courses. Farmers who
create such buffers may receive 50% cost share as
well as annual rental payments.
In addition to the economic incentives discussed
above, the 1985 Farm Bill also introduced new
provisions for Highly Erodible Lands (HEL). The
Conservation Compliance and "Sodbuster" programs
establish a disincentive for producers to cultivate land
that is classified as highly erodible. The producer must
develop and fully implement a soil conservation plan
or suffer the loss of eligibility for farm support
payments.
2. Conservation Reserve Enhanced
Program (CREP)
Under the 1996 Farm bill, the Federal Conservation
Reserve Enhanced Program can be combined with an
approved state program. The federal program
described above is augmented by state matching funds
(usually 20%) to create permanent easements and to
help pay for planning and natural resources restoration
costs. The primary purpose of the enhanced program
is to help landowners create riparian buffers of trees
and grasses along watercourses to provide habitats
and to filter pollutants to improve water quality. The
total amount of funds available varies by state, but
these funds provide a compelling incentive for
stewardship.
3. Wetlands Reserve Program (WRP)
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The WRP, enacted in the 1990 Farm Bill, is a
voluntary incentive-based program offering
landowners the opportunity to protect, enhance, and
restore wetlands on their property. The focus is on
restoration of farmed/prior-converted wetlands, and
protection of the functions and values of wetlands to
improve water quality, floodwater retention,
groundwater recharge, and wildlife habitat.
Landowners can select from three enrollment options:
permanent easements where landowners can receive
up to full agricultural value of the land and the entire
cost of restoration; 30 year easements with payments
of 75% of value and 75% of restoration costs; or 10
year agreements with 75% of restoration costs.
Beyond these payments, landowners can often
supplement their income by leasing the restored
wetlands for hunting, fishing, and other appropriate
recreational uses.
In addition to the above incentives, the 1985 Farm Bill
introduced the "Swampbuster" program that is a
disincentive to draining wetlands for agricultural
production. Landowners who receive farm subsidies,
loans, or benefits must refrain from drainage of
wetlands or risk losing their program funds and
benefits.
practices and is reimbursed for 50-70% of those
costs.
5. Wildlife Habitat Incentives Program
(WHIP)
The WHIP, enacted in the 1996 Farm Bill, is a
voluntary program for private landowners who want
to establish and improve fish and wildlife habitat on
their lands. Participants agree to implement a wildlife
habitat conservation plan in return for financial and
technical assistance. Although federal cost-share
payments are limited to $10,000 per contract, these
dollars have been leveraged many times over with
contributions from state wildlife agencies, local
conservancies, and private funds.
6. Forest Stewardship Program (FSP)
The FSP, enacted in the 1990 Farm Bill, enables
landowners to receive up to 75% of the costs of
preparing and implementing a Forest Stewardship
Plan to protect and enhance their forested land and
associated watersheds. The plans are intended to
promote stewardship of the forest cover, as well as
fish and wildlife habitat, water quality, and recreational
and aesthetic values of the land.
4. Environmental Quality Incentives
Program (EQIP)
EQIP, enacted in the 1996 Farm Bill, offers financial,
educational, and technical assistance to landowners to
implement livestock-related conservation practices,
on-farm conservation measures to reduce soil loss,
and control of non-point sources of water pollution.
This program advances the concepts of private
stewardship of the land for livestock operations, and
includes grazing land management, nutrient
management, and manure management from confined
animal feeding operations. The landowner pays the
initial cost of establishing approved conservation
TAX INCENTIVES
The tax code provides a variety of benefits and
incentives to those who wish to pursue stewardship
practices. Tax codes and tax policy can be an
efficient means to change behavior, create incentives
or disincentives for stewardship, and to alter patterns
of natural resources utilization. The following
examples provide a few illustrations.
1.
Ad Valorum Taxation
Lands appraised for property taxes atthe "highest and
best use" can impose upward pressure on land values
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and therefore increase the incentive to convert open
space land (or working landscapes) to development
uses. To offset this problem, property tax stabilization
or "current use" programs have been enacted in
several states to provide an economic incentive to
maintain farms, ranches, forest and open space.
Based on criteria (usually including some measure of
ecological value), property tax burdens are lowered in
return for commitments by the owner for stewardship
and maintenance of the integrity of the land.
Management agreements (see above) maybe used to
ensure the property serves its intended purpose.
In California, the Williamson Act (California Land
Conservation Act of 1965) is an example of this type
of property tax stabilization program for farmland.
Landowners enroll their property with the county for
a minimum of 10 years (which is automatically
extended in one-year increments). In exchange, the
land continues to be assessed for agricultural
production resulting in substantial tax savings. If land
is withdrawn prematurely from the Williamson Act,
significant tax penalties may accrue. An estimated 16
million acres are currently enrolled under Williamson
Act provisions.
2.
Estate Taxation
Properties that have high market values but low-
income production may cause heirs to face formidable
estate tax consequences upon the death of the
landowner. Current tax law can create a situation
where these properties (often with high habitat/open
space value) must be sold or subdivided to pay the
estate taxes due. The Economic Growth and Tax
Relief Reconciliation Act of 2001 may substantially
reduce the likelihood that estate taxes will cause the
sale or subdivision of properties. The new law raises
the amounts that can be exempted from taxation
($675,000 in 2001; $1.0 million in 2002; $1.5 million
in 2004; $2.0 million in 2006; $3.5 million in 2009).
Moreover, the top estate tax rate, now set at 55%,
will drop to 50% in 2002 and decrease 1% per year
to 45% in 2007. These changes, in combination with
other estate planning provisions, now will be a
powerful incentive to retain the integrity of larger tracts
of land and facilitate the continued stewardship of such
lands.
3. Charitable Donations of Lands - Tax
Deduction
Existing state and federal tax codes allow tax
deductions for charitable donations ofland; individuals
generally can deductup to 3 0 percent of their adjusted
gross income and corporations can deduct up to 10
percent of taxable income. Deductions are based on
fair market value of the property, including certain
appreciated values. These tax deductions can serve
as a powerful incentive for land stewards to donate
private property for charitable/conservation purposes.
4.
Donations of Lands - Tax Credit
In California, The Natural Heritage Preservation Tax
Credit Act of 2000 (SB 1647) provides that lands
with specified natural resource upon them may be
donated to the State of California, any local
government, or a designated nonprofit organization.
The donation provides for the protection of wildlife
habitat, open space and parklands, and agricultural
lands. The Act allows a 55% tax credit against
income and/or corporation taxes for the donation of
such properties. This tax credit can reduce regular
taxes below the threshold for alternative minimum tax
calculation. Excess credits can be carried forward for
seven years. The tax credit is in lieu of any other tax
deductions (see above) that may be available for the
donation. The Act sets a limit that no more than $ 100
million be expended for tax credits over the next 5
years. This tax credit will be a powerful incentive for
land stewards to donate their property for
conservation purposes.
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5. Taxable Capital Gains
Landowners who sell their land (or a qualified
easement) for conservation purposes could have their
taxable capital gain on the sale reduced. Such a
reduction of taxable capital gain would increase the
likelihood that such lands would be sold for
conservation rather than for development. The
reduced capital gain from the conservation sale would
enable the seller to benefit from larger net proceeds
after taxes.
6.
Real Estate Transfer Taxes
Based on local housing market conditions and the
general appreciation of real estate value, the market
prices of urban land and dwellings, and the market
prices of undeveloped urban-edge lands, can increase
substantially over time. The State of Maryland,
through its Smart Growth Program, is seeking to
capture the increased value of urban lands and to
transfer some of that increment of value to the
preservation of rural lands. A real estate transfer tax
is assessed (.05% of transaction value) on the sale of
urban property. Revenues are then applied to: 1)
directly purchase rural/open lands in fee simple; 2)
directly purchase development rights or conservation
easements; and, 3) to leverage a new issuance of state
general obligation bonds to acquire open lands for
land preservation and conservation management.
7.
Charitable Remainder Unitrust
The tax code contains provisions that enable an
individual or a couple to indirectly promote lands
conservation and stewardship through an instrument
known as a Charitable Remainder Unitrust (CRUT).
Individuals or couples (the "Trustors") can establish a
CRUT and then transfer liquid assets (usually stock
with substantial appreciated value) to the CRUT. The
CRUT remains in effect for the lifetime of the Trustors
or the survivor of them, at which time its accumulated
asset value is transferred to a designated non-profit
land trust conservancy to be reinvested or used to
purchase lands and/or easements for conservation
purposes.
The tax advantages are compelling and benefit both
the Trustors and their estates, and, importantly, benefit
the public interest in lands' conservation.
1. The Trustors receive a specified level (x% of
current asset value) of income from the CRUT
each year for their lifetime. The income is largely
derived from capital appreciation in the CRUT,
and so is treated by the Trustors as capital gain at
lower tax rates then the rates on their earned
income.
2. The Trustors may claim a current income tax
deduction for the proper % of value that is
donated to the charitable trust (the CRUT). This
deduction, of course, can be applied against their
other current income to reduce the tax burden.
3. The Trustor' s residual estate does not contain any
of the assets donated to the CRUT; and so estate
taxation is reduced accordingly.
4. The Trustors ultimately pay no capital gain on the
appreciated stock that they originally put into the
CRUT.
5. The CRUT itself is tax-exempt, and so the
accumulating/appreciating assets in the CRUT
incur no capital gain tax at all. The Trustors in
effect have transferred substantially appreciated
value, and further accumulated value in the
CRUT, to the benefit of land conservation without
incurring capital gains.
6. The land conservancy, which receives the full tax-
free value of the CRUT at the time of the
Trustor's death, gains a substantial asset, which
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can then be invested in lands conservation and
stewardship programs.
FEDERAL PROGRAMS AND POLICIES
Federal policies governing the use of public lands and
resources, federal fees, and federal funding for
infrastructures could be used to support a variety of
stewardship practices.
1. Federal Water for Habitat
Federal water (i.e., water resources developed under
a federal water project) has traditionally been
allocated free-of-charge to benefit the aquatic habitat
values of federally designated refuges. Even though
such water is often surplus and is applied in the off-
season (when irrigation water is not otherwise
needed), it provides essential habitats for migrating
waterfowl.
control benefits of the non-structural flood control
measures created exceed the benefits provided by
structural works. The non-structural measures could
include direct purchase of lands in the flood plain;
relocation of urban settlements to higher ground;
purchase of flood easements or right-of-way; levee
set-backs; re-creation of riparian/wetlands habitats to
provide flood water detention and absorption.
Moreover, federal funds allocated by the Federal
Emergency Management Agency (FEMA) for flood
disaster relief and recovery can be used to fund
nonstructural alternatives, as discussed above, to
avoid recurrences of the flood patterns. Such
measures taken for flood control purposes can enable
the creation of permanent riparian and/or wetland
habitats that would otherwise be lost to levees, dikes,
and concrete channels.
3. Restoration Funds
Under an experiment in the Central Valley of
California, federal water is provided free-of-charge to
flood privately owned rice paddies in the off-season
after the rice harvest. The flooded rice paddies, with
their abundant stubble and residual feed, provide an
extraordinary feeding and resting stop for waterfowl
on the Pacific Flyway. Federal water applied for free
thus creates extraordinary habitat value and effectively
extends the acreage of the limited federal refuges.
These habitat benefits would be costly to create by
direct federal funding mechanisms. In addition, the
flooded paddies do not need to be burned to remove
the stubble, thus eliminating a substantial cause of the
smoke that hangs in the winter inversions of the
Valley.
2. Federal Flood Management
Federal funds appropriated for structural flood control
works (dams, levees, channels) can be redirected to
fund non-structural flood control measures if the flood
The Central Valley Project Improvement Act
(CVPIA) (PL 102-575, Title 34) created a special
fund based on a complex set of water rates and
surcharges, to pay for various ecological enhancement
and restoration projects in the Central Valley of
California. The long-standing and continuing losses of
habitat and fish and wildlife resources as a result of the
Federal Central Valley Project water diversions are to
be addressed by this special Restoration Fund.
Revenue flows into the fund from contract renewal
charges, water transfer charges, tiered water prices,
various surcharges, and additional mitigation
payments. These total revenues are then appropriated
by Congress to finance various habitat restoration
projects and other fish and wildlife enhancements.
The annual revenues thus created equal about $30
million per year (adjusted for 10 year rolling
averages). The U.S. Bureau of Reclamation has set
up a Restoration Fund Roundtable comprised of all
stakeholders to provide advice on how to prioritize the
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Fund resources among the various projects for
ecological restoration in the Central Valley.
ASSURANCES
1. Endangered Species Assurances
The U.S. Fish and Wildlife Services (FWS) and the
National Marine Fisheries Service (NMFS) have
developed several strategies to create partnerships
between the public and private sectors to help protect
the interests of endangered and threatened species on
private land. Most of these strategies focus on
increased flexibility in the implementation of Section 9
of the Endangered Species Act (ESA), which
prohibits activities that could cause indirect harm, such
as significant habitat modification. In general, these
tools permit actions that would otherwise be deemed
illegal under Section 9 in exchange for stewardship
commitments to manage private lands for species
benefit or to mitigate for actions that harm listed
species.
2. Habitat Conservation Plans and No
Surprises
In 1982, the Endangered Species Act was amended
to allowforlhe creation of Habitat Conservation Plans
(HCP) as a means of allowing development of private
lands while protecting species. An HCP allows the
FWS or the NMFS to permit the incidental "taking"
of listed species when the taking is mitigated by
conservation measures. In practice, the HCP allows
some individuals of a species to be taken under an
incidental take permit (ITP) if the incidental take
occurs during the course of otherwise lawful activities
and provided that the HCP demonstrates that the
activity will not jeopardize the continued existence of
the species.
Beginning in 1992, the FWS and the NMFS also
began to streamline and modify the HCP process with
a "No Surprises" policy to provide regulatory
certainty to landowners participating in a HCP. The
"No Surprises" policy assures landowners that no
additional land use restrictions or financial
compensation will be required for species covered by
the HCP, even if unforeseen circumstances arise after
the permit is issued. The intent of the policy is to
afford sufficient incentives for the private sector to
participate in the development of long term HCPs by
providing adequate financial and regulatory certainties
regarding the overall cost of species mitigation.
3. Safe Harbor Agreement
The Safe Harbor concept is intended to provide
incentives for property owners to voluntarily take
stewardship actions that result in net conservation
benefits for endangered and threatened species. Safe
Harbor agreements are unlike HCP in that: 1) they
must result in a net conservation benefit for listed
species (i.e., they must provide pro active
management actions above and beyond what is
required by ESA, as opposed to mitigating for adverse
actions under HCP); and 2) they offer short and
midterm conservation benefits (as opposed to the
longer term scope ofmostHCP). The agreements are
intended to alleviate landowner fears that successfully
maintained or enhanced habitats for listed species
could prompt further land use restrictions if such
actions encourage the colonization or increase the
number of listed species on their property.
Under a Safe Harbor Agreement, landowners can
commit to manage their lands in a manner that will
benefit listed species in exchange for assurances that
future activities will not be subject to ESA restrictions
above those applicable to the property at the time of
enrollment. The agreement spells out the baseline
condition of species as well as the conservation
activities that the landowner agrees to perform. Once
the agreements are executed, an enhancement of
survival permits is issued that authorizes "take" above
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the baseline limit. This permit, in effect, allows
landowners to return their property to its original
baseline condition at the end of the safe harbor
agreement.
4. Candidate Conservation Agreements
Before a species has been listed as officially
threatened or endangered it receives no protection
under the ESA, even if it is declining and is in an
imperiled state. Landowners, therefore, are under no
legal obligation to refrain from destroying the habitat of
unlisted species. Moreover, landowners have little
incentive to improve or restore habitats for unlisted
species on their property because, if the species is
ultimately listed, their land will be subject to increased
restrictions under Section 9 of the ESA. Similar to
Safe Harbor Agreements, Candidate Conservation
Agreements (CCA) has been developed to reverse
such disincentives that deter private landowners from
voluntarily managing their lands to benefit species.
Instead of listed species, however, CCA and
associated regulatory assurances target actions that
benefit species that are proposed as candidate species
for listing.
Under a CCA, property owners identify conservation
actions that they are willing to undertake to benefit
candidate species. In return, the landowner can
receive regulatory assurance that, in the event the
species is listed, no actions above and beyond those
agreed to in the CCA would be required. The
assurance takes the form of an enhanced survival
permit, which authorizes the incidental-take of the
species (should it become listed), provided that the
terms and conditions of the CCA are met.
5. Liability Assurances
The federal government can provide various
assurances to private parties (developers, capital
providers, prospective buyers) to reduce the financial
liabilities that encumber properties contaminated with
hazardous substances. Such assurances can take
various forms: comfort letters, covenants not to sue,
hold-harmless agreements, and prospective purchaser
agreements are a few. Such assurances can help in
the redevelopment of industrial lands (called
brownfields) and therefore avoid development of open
space or undeveloped lands (known as greenfields).
LOAN PROGRAMS
1. Clean Water State Revolving Fund
In 1987, Congress created the Clean Water State
Revolving Fund (CW-SRF) to finance water quality
improvement projects. The SRF provides loans,
rather than the long-standing practice of federal grant
assistance. Individual state revolving funds are
capitalizedby annual "capitalization" grants fromEPA.
The CW-SRF now holds in excess of $40 billion in
assets and has issued $35 billion in loans. Each year
the SRF fund about $3 billion worth of loans for water
quality projects.
The individual State Revolving Funds (there are now
SRF programs in each state) work like banks.
Federal and state contributions are used to capitalize
or create the banks; these funds are then used to make
low-interest loans for water quality projects. States
may choose to leverage their capitalization grants by
issuingbonds with the "cap-grants" as collateral. Loan
recipients repay their loans over the 20-year term of
the loan. Repaid funds are used to finance new loans
- thus the revolving aspect of the funds.
The SRFs traditionally have allocated their loan
portfolio to municipal wastewater treatment systems.
Increasingly, the SRFs are funding other water quality
improvement projects, such as land acquisition, non-
point source controls, wetlands and estuary
protection, and other types of watershed projects.
Thus, the SRFs have become an important source of
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funding for stewardship practices and natural resource
management activities.
While finding a source of repayment for the loan to
acquire lands may prove challenging, many users of
the CW-SRF have demonstrated a high level of
creativity in developing sources of repayments. The
source of repayment need not come from the project
itself. Some possibilities include:
• Fees paid by developers on other lands
• Recreational fees (fishing license or park entrance)
• Dedicated portion of local, county, or state taxes
or fees
• Donations or membership dues
Often, properties initially acquired with a loan are re-
sold to an entity for long-term management with the
sales proceeds used to retire the initial loan.
2. Drinking Water State Revolving Fund
In 1996, Congress created the Drinking Water State
Revolving Fund (DW-SRF) as a measure to finance
drinking water protection and treatment projects. It
works in much the same manner as the CW-SRF
described above.
The significant feature of the DW-SRF is that it may
lend funds to acquire critical watershed lands in order
to protect the integrity of present and future water
supplies. It may also be used to fund source-water
protection programs and stewardship practices on the
watershed lands in order to minimize or avoid
increased water treatment costs downstream at the
drinking water treatment facility.
MITIGATION MEASURES
As a result of regulations created under Section 404
of the Clean Water Act, permits for discharge of fill in
wetlands can only be authorized if mitigation
"sequencing" requirements are met: first avoiding
impacts, then minimizing impacts, and finally
compensating for any unavoidable impacts.
Compensation has usually been undertaken by
replacement of "in-kind" wetlands (i.e., of same
function and value as those filled) at a location "on-
site." The pervasive difficulty of implementing such "in-
kind"/"on-site" mitigation has led to the development
of banks.
1. Mitigation Banks
Mitigation banking is the creation, at an offsite
location, of a "bank" of wetlands that can be drawn-
on to provide compensatory mitigation in advance of
project impacts. The "bank" of wetlands is intended
to be "in-kind" (or as close as science can provide).
Such banks enable the consolidation of several small
mitigation projects into a single large tract, and can
bring together greater levels of scientific expertise and
financial resources. Moreover, banks offer the
opportunity to maintain biodiversity and ecosystem
function in a planned way, while providing market-
based opportunities for investors.
2. Conservation Banks
Conservationbanks derive their origins frommitigation
banks, but are broader in scope and enhance market-
based opportunities. They provide for "offsite"
mitigation and "out-of-kind" mitigation.
Land is acquired or dedicated "up-front" to create a
conservation bank. The lands are assembled in a
regional preserve system, and the conservation bank
is required to provide for management of the property
in perpetuity. Conservation banks are pre-approved
by state and federal regulatory and wildlife agencies.
In exchange for dedicating lands to regional preserves,
marketable credits are issued that may thenbe sold to
parties requiring mitigation. A person requiring
compensatory mitigation can simply buy a credit for
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February 2003
each unit of compensatory mitigation needed.
Compliance with compensatory mitigation
requirements through a conservation bank is easier
than trying to locate a willing seller of land that has the
correct type of mitigation habitat, in the correct
location, at a reasonable price. Conservation banks
offer the dual advantages of building regional
preserves while enabling certain development projects
to proceed with suitable mitigation.
CHAPTER 4
INTERESTS IN LAND AND THE
POWER OF LEVERAGE
Stewardship is so integrally connected with land that
to think of stewardship is to think of preserving parcels
of land, in whole or in part. There are several
stewardship programs across the country that
successfully are preserving land and creating open
space in the landscape by acquiring the land in fee
simply absolute - where the land and all its attributes
are purchased from another owner. The fee simple
estate in land represents all the interests in the land,
every present interest and every future interest.
However, it is possible to effectively dedicate land to
stewardship purposes without purchasing the entire
fee simple interest to the real property.
The law of real property has common elements
throughout the fifty states. The law of each state is
different and generally governs title transfer
considerations. A general discussionfollows of various
interests in land and the advantages of acquisition of
less than the entire fee simple absolute title for
purposes of stewardship of the land.
Title to land most commonly is held in fee simple
absolute (or fee simple) so that all of the interests of
the land accrue to the owner. The owner owns every
aspect of the land, including the right to use the
property and its natural resources to the exclusion of
everyone else as well as the right to transfer the
property without the consent of anyone else. If
property is viewed as a bundle of sticks with each
stick representing a different interest in the property
the fee simple absolute is the entire bundle of sticks.
The fee simple absolute can be divided in many ways
to create lesser interests in land. In other words, each
stick in the bundle can be separated from the others.
For example, one can own only:
• A right to use all or a part of the land (as with an
easement),
• An exclusive or nonexclusive right to occupy all or
a part of the land for a stated period of time (as
with a lease),
• A right to develop the land (as with a development
right),
• The right to use or harvest a particular natural
resource on the land (as with a water right),
• A right to occupy the land for the rest of one's life
or the lifetime of another (as with a life estate),
• A right to own a future interest in land (as with a
remainder interest).
These types of lesser interests in land, or lesser
estates, and their associated lesser economic
valuations, can yield a set of incentives that
significantly support and enhance stewardship
practices. This balance of this chapter will examine a
set of tools based on these lesser interest estates in
land.
CONSERVATION EASEMENTS
When a landowner grants a conservation easement to
another entity, the landowner permanently limits uses
of the land in order to protect its conservation values,
but retains the ownership, use and ability to sell the
land. Conservation easements ordinarily will run with
the land, that is, future owners also are bound by the
terms of the easement. Conservation easements can
be drafted to encumber only part of a parcel of land.
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Moreover, not every conservation easement allows
the public access to the property encumbered by the
easement.
Conservation easements may be used for a variety of
purposes, for instance to:
• Protect habitat, wetlands, river corridors, riparian
areas, forests, and othernatural resource areas for
their environmental or ecological values,
• Protect "working landscapes' and enable the land
to continue to be used as a commercial or family
enterprise,
• Create a barrier in the path of urbanization,
• All of the above.
The landowner may sell the easement or donate the
easement (which yield different benefits explained
below). The entity that receives the easement is
usually a government agency, a private land trust, or a
conservation-oriented organization. The land subject
to the easement is managed and cared for pursuant to
a management agreement that specifies stewardship
practices. Annual monitoring and inspection of the
land to ensure compliance with the terms of the
easement is ordinarily required under the terms of the
easement.
Conservation easements yield an impressive array of
financial and non-financial benefits to the public and to
the landowner. All of these benefits support and
enhance the ethic and practice of stewardship.
1. Benefits to the Public
• Land is conserved and ecological values protected
at a cost significantly lower than full acquisition in
fee simple.
• Limited capital for conservation can be leveraged,
thus greatly extending conservation opportunities.
• Landowners, by dedicating their lands, become
directly engaged in the conservation enterprise,
and provide leadership and set an example for
stewardship.
• Land encumbered by easements may facilitate the
assembly of protected lands through contiguous
blocks of parcels at an ecosystem or landscape
scale. Conversely, easements may prevent the
fragmentation of habitats and the disruption of
migratory corridors.
• Conservation easements may prevent the
unplanned and random conversion of lands to
more intensive uses.
• Purchase of conservation easements can serve as
a regulatory mitigation for a development that is
approved for another location.
2. Benefits to a Landowner
• If the property easement is donated, significant
tax benefits may accrue to the landowner.
• If the property easement is sold, the landowner
receives a lump sum payment or a stream of
payments over time.
The payments can be used to reduce debts and
modernize operations; and enable the owner to
sustain a viable enterprise.
The payments may be used for retirement
purposes.
• The payments may be dedicated to estate
settlement.
The payments maybe reinvested inthe restoration
of the land by direct capital expenditures for
improvements, or for financing capital
improvements over time, and/or by serving as a
match for governmental programs for restoration.
The presence of a conservationeasement reduces
assessed value of the property and thereby
reduces property tax assessments.
The presence of a conservationeasement on land,
by reducing the property tax assessment, reduces
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24 Environmental Financial Advisory Board (EFAB)
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the ultimate value of the estate of the landowner
and lessens the tax burden on the estate and heirs.
Beyond these financial benefits to the landowner, there
is another set of benefits that support the ethic of
stewardship. Landowners' motivations are complex
and deeply rooted in personal beliefs about land
preservation and stewardship. Some of the
motivations to sell or donate a conservation easement
are:
With the development potential of the
property eliminated or reduced, the land has
a lesser valuation and lesser tax burden,
allowing many families to retain the property
in family ownership for succeeding
generations, especially for home sites for their
children.
• The property holds deep personal attachment,
reflecting years of hard work, and a history of
sustained family ownership and care for the
land. A conservation easement can ensure
that the land is preserved to reflect the
family's values.
The property can contribute to a viable local
or regional agricultural community, and can
help retain the agricultural character of the
region.
TRANSFER OF DEVELOPMENT RIGHTS
Another lesser interest in land that can be transferred
independently of the fee interest to support
stewardship in a community is the right to develop the
land in accordance with local regulatory authorities
such as zoning and conditional use permits. There are
a variety of relatively new tools that maybe employed
to remove or transfer the right to develop from one
parcel to another. These techniques are known as
"compensatory regulations." They hold the promise of
providing regulatory relief for landowners,
compensating affected landowners, augmenting public
land acquisition programs, and establishing a
permanent conservation -oriented land use policy.
1. Transferable Development Credits (by
negotiation)
In a Transferable Development Credits ("TDC")
program, individual landowners can voluntarily enter
into negotiations whereby the owner (sender) of open
space, agricultural, or habitat land sells or transfers
"development credits" to a developer (receiver)
wishing to increase the density of a developable
parcel. Local governments can encourage such
transfers by acting as facilitator and by allowing an
increase in density over the base zoning on the
receiver's parcel in return for a dedication of a
perpetual easement on the sender's parcel. This type
of program is voluntary and requires developers to
identify and negotiate with willing sellers of TDCs on
a case-by-case basis.
2. Transferable Development Credits (by
ordinance)
Instead of having landowners negotiate TDC deals on
a project-by-project basis, local governments can
adopt a TDC ordinance to encourage protection of
open space, agricultural land, and habitat lands, while
guiding future development into areas most capable of
supporting increased density. A TDC ordinance
designates by zoning "sender areas" where
development is restricted and "receiver areas" where
density may be increased. Landowners wishing to
develop above the base zoning in designated receiver
areas must acquire TDCs from landowners in the
sender areas. When TDCs are sold, the sending
parcel must dedicate a perpetual conservation
easement to encumber the land that prohibits future
subdivision or changes in use. In some circumstances,
TDCs may be severed from the land and traded on
the open market. In addition, severable TDCs may be
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25 Environmental Financial Advisory Board (EFAB)
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mortgaged and leveraged to acquire large tracts of
land in sender areas.
3.
Tradable Conservation Credits
Landowners who voluntarily preserve their lands (for
instance, through conservation easements) may be
entitled to earn "conservation credits." Such credits
may be freely tradable at market prices to allow
landowners who need credits for regulatory mitigation
to purchase them from landowners who have
exercised stewardship to preserve their lands. Credits
could also be earned for actions to restore and/or
enhance habitats.
4. Purchase of Development Rights
Development rights may be purchased on the open
market by private land trusts or conservation-oriented
organizations and then simply held in perpetuity to
prevent future development or subdivision. The public
benefits by the purchase in that the land is protected in
perpetuity; and the landowner benefits by the financial
reward for his stewardship practices.
TRANSFER OF WATER RIGHTS
In order to facilitate the practice of stewardship,
especially for the benefit of aquatic habitats and
riparian corridors, certain water rights may be
transferred, assigned, donated, or sold.
The transfer of a water right from an on-land
application (such as irrigation) to sustain in-stream
flows for enhancement of a fishery, protection of
aquatic habitats, and/or protection of a riparian stream
zone are a new and growing practice. Sometimes the
right is permanently transferred through a market
transaction; or the right can be temporarily leased for
a limited period to correspond to a critical seasonal
flow need. These seasonal in-stream flow dedications
can produce considerable benefit to habitat without
the need for lengthy and expensive water right
proceedings or adjudicatory hearings.
State law varies as to the mechanics of water right
transfers. Often the state must deem that in-stream
flows are a "beneficialuse". Downstream right holders
and senior right holders must be protected and/or
compensated.
LIFE ESTATES AND
REMAINDER INTERESTS
A landowner may wish to enjoy his property during
his lifetime but want to dedicate the property to
conservation purposes after his death. In such a case,
rather than providing for disposition of his land in his
will, he may find it to his financial advantage to
consider transferring the property during his lifetime,
but reserving a life estate to himself. During the term
of his life estate, the landowner remains in title to and
possession of the land, subject to the remainder
interest of the owner of the remainder interest (the
"remainderman"). Such an arrangement requires that
the owner of the life estate preserve the property
during his life estate for the benefit of the
remainderman. It also could be drafted to require that
the remainderman has an obligation to maintain the
property for conservation purposes upon the death of
the owner of the life estate. Donation of a remainder
interest for conservation purposes may qualify for
favorable tax treatment.
CHAPTER 5
RECOMMENDATIONS
This paper has explored the concept of stewardship as
an important means to restore and protect America's
land legacy and has set forth the essence of
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26 Environmental Financial Advisory Board (EFAB)
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stewardship, principles for stewardship, and a
framework to further instill stewardship in the ethos of
the United States. It makes the case that the practice
of stewardship can produce substantial economic and
environmental value to society. It also presents an
open-ended compilation of policies, tools and
incentives that will support stewardship as an ethic and
implement stewardship as a practice.
Based on this research, EFAB finds:
The ethic of stewardship should be the basis
and guiding theme for the conservation of
America's land legacy, and should be the
foundation for a public and private
commitment to ensure the present and future
productivity of our lands and watersheds.
• The practice of stewardship should be the
preferred management strategy to be applied
to America's landscape of public and private
lands, and should be supported with a
portfolio of tools, policies, financial incentives,
information and education.
EFAB strongly believes that stewardship should be a
compelling component of America's overall agenda
for environmental protection, ecological restoration,
and economic vitality. Stewardship builds upon
America's fundamental values: individual and civic
responsibility, volunteerism, systems of incentives and
rewards, and a care for future generations.
Stewardship rightfully belongs within the mission of the
Environmental Protection Agency; and with EPA's
capable leadership can become a critical part of our
future environmental plans.
EFAB therefore offers the following recommendations
to the Administrator:
EPA should embrace stewardship as a core
value of the Agency, and as a foundation for
the Strategic Plan.
EPA should perform an internal review of its
authorities, programs, and initiatives to identify
their contributions to individual stewardship,
community stewardship, and corporate
stewardship. This review would be the basis
to advance stewardship as a coherent and
central theme of EPA's Strategic Plan and
annual budget.
EPA should realign its grant assistance
programs to states and communities to foster
and support stewardship practices. For
example, funding for watershed councils
would directly support on-the-ground
stewardship practices that enhance and
protect the integrity of the land and water
resources.
EPA should create an internet-based
clearinghouse dedicated to stewardship to
promote the exchange of ideas, provide
benchmarks of successful practices, and
inform and educate.
EPA should work with the Council on
Environmental Quality, the Department of
Interior, the Department of Education and the
Department of Agriculture to organize and
convene a national dialogue on stewardship to
engage stewards and practitioners in
development of a national framework for
stewardship.
EPA should vigorously implement the Clean
Water Action Plan (CWAP) as a model for
Federal interagency cooperation on
watershed management. Through the
CWAP, and other interagency committees,
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Environmental Financial Advisory Board (EFAB)
February 2003
EPA should support implementation of the
Farm Bill and its compelling stewardship
incentives for farmland conservation, wetlands
restoration, and habitat protection.
• EPA should reconsider EFAB's prior
recommendation for a new financing vehicle
for stewardship in the form of an
Environmental State Revolving Fund (ESRF).
Building on the exemplary success of the
Agency's CWSRF and DWSRF, a new
revolving fund can be developed and
capitalized for sustainable financing of
stewardship practices.
EFAB urges the Administrator to consider these
recommendations and take advantage of this
opportunity in these pivotal times to more firmly
establish the ethic and practice of stewardship within
the bedrock of America's values to protect and
preserve our lands and watersheds for all generations
to come. The Board stands ready to assist the
Agency in this important endeavor.
APPENDIX 1
EFAB STEWARDSHIP
ROUNDTABLE
San Francisco, CA
August 8, 2001
QUESTIONS FOR THE PANEL
1. The use and disposition of privately held
land is determined primarily by market
forces and by applicable laws,regulations,
and codes. In addition to these driving
forces, long-term conservation and
stewardship of private lands may need
creative tools and incentives to
supplement these market and regulatory
forces.
a. What is the appropriate role of
voluntary efforts by private
owners in the long-term
conservation and stewardship of
their lands?
b. What is the potential to instill a
stewardship ethic and to apply
stewardship "best management
practices" for the management of
private lands?
What manner of incentives may be
appropriate to encourage and reward
stewardship practices? Please comment
on the potential utility of:
a. information and education
b. recognition and rewards
c. technical assistance and peer
support
d. financial assistance
e. tax considerations
f. commodity prices support
programs
g. other creative incentive.
As a manager of the public lands, as a
regulator, and as a provider of financial
assistance the federal government plays
an important role in promoting the ethic
and practice of stewardship. Please
comment on how the federal government
could improve its performance and make
a greater positive impact to promote
stewardship. Does the federal
government have a role to provide a
forum for the various groups interestedin
stewardship, i.e., states, non-profits,
business organizations and faith-based
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28 Environmental Financial Advisory Board (EFAB)
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organizations, to meet and craft a unified
approach to a national policy regarding
stewardship?
Stewardship through land acquisition in
fee simple absolute now is being
supplemented by creative acquisitions of
less-than-fee-simple estates. These
lesser estates in land include
conservation easements, development
rights, water rights and greenway
easements, among others.
a. Please comment on the financial
advantages of acquisition of less a
than fee simple estate in land for
stewardship purposes.
b. How can the purchase of lesser
estates in land, including
easements and development
rights, promote the ethic and
practice of stewardship?
c. What financial tools or
mechanisms might be applied to
the purchase of easements and
other lesser estates in land in
order to optimize the capital
investment outlay?
What is the potential for using loans
rather than grants as the investment
vehicle? Should loans be structured to
create a revolving or sustaining source of
investment capital?
What is the potential for creating
permanent endowment funds and/or fully
capitalized accounts that could be
managed to support private stewardship
practices or to support care and
restoration of lands and habitats? What
are the comparative advantages and
disadvantages of the different vehicles
that have established permanent
endowments for stewardship?
7. In the TMDL program for water quality
management in a watershed,
responsibility for pollutant reductions is
allocated to all discharges.
a. What is the potential to employ
trading regimes to enable cost-
effective pollution control
investments to be made within
water sheds? For example, would a
mechanism that allowed trading
between point source discharges
and non-point discharges promote
stewardship?
b. What is the potential to employ
market mechanisms for cost-
effective reduction of pollutant
discharges to meet TMDL
allocations? For example, do you
think an open market for the
buying and selling of "discharge
reduction credits" would be an
effective stewardship tool?
REFERENCES
American Farmland Trust, "Saving the Farm: A
Handbook for Conserving Agricultural Land",
Washington, DC, 1990.
Aspen Institute, "The Stewardship Path to
Sustainable Natural Systems", 1999.
Bank of America, "Beyond Sprawl: NewPatterns
of Growth To Fit the New California", 1995.
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29 Environmental Financial Advisory Board (EFAB)
February 2003
California Environmental Dialogue, "Habitat and
Prosperity: Protecting California's Future", 1998.
California Environmental Dialogue, "Land
Conservation in California: Needs for the Next
Decade", 1999.
California Legislative Analyst's Office,
"California's Land Conservation Efforts: The
Role of State Conservancies", 2001.
California State Coastal Conservancy, "Options
for Wetlands Conservation: A Guide for
California Landowners", 1994.
Centerforthe Continuing Study of the California
Economy, "Land Use and the California
Economy: Principles for Prosperity and Quality
of Life", 1998.
Colorado Cattleman's Agricultural Land Trust,
"Keeping the Family in the Family Ranch:
Private Land Conservation in the West", 1997.
Defenders of Wildlife, "National Stewardship
Initiatives: Conservation Strategies for U.S.
Land Owners", 1998.
Defenders of Wildlife, "Stewardship Incentives:
Conservation Strategies for Oregon's Working
Landscapes", 1998.
Glickfeld, Jacques, Kieser, and Olson,
"Ecosystem Management, Implementation
Techniques and Strategies for Conservation
Plans", Land Use and Environment Forum,
Volume 4, Number 1,1995.
Interagency Ecosystem Management Task
Force, "The Ecosystem Approach: Healthy
Ecosystems and Sustainable Economies", 1995.
National Wildlife Federation, "Working
Landscapes: Cultivating Conservation in the
2002 Farm Bill", 2001.
Resources Agency of California, "Preserving
California's Natural Heritage: A Bioregional
Guide to Land and Water Conservation", 1998.
Rilla and Sokolow, "California Farmers and
Conservation Easements: Motivations,
Experiences, and Perceptions in Three
Counties", University of California Agricultural
Issues Center, 2000.
The Keystone Center, "National Policy Dialogue
on Ecosystems Management", 1996.
The Sonoran Institute, "Preserving Working
Ranches in the West", Tucson, AZ, 1997.
Wilson, Edward P.. The Future of Life. Alfred A,
Knopf, New York, 2002.
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