Conservation Easements and Eminent Domain
By Blair Fitzsimons
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The Lower Colorado River Authority (LCRA) has proposed to construct a large electrical transmission line across the largest piece of protected land—public or private—in Gillespie County, southwest of Austin. Owned by Mrs. Terese T. Hershey, one of Texas’ most renowned conservationists, the 1,500-acre Hershey Ranch is protected by a conservation easement which was supposed to conserve it in perpetuity. The Hill Country Land Trust, one of Texas’ 30 private, non-profit land trusts, “holds” the conservation easement, and is entrusted with ensuring that the land is protected forever.
A conservation easement is a voluntary agreement – individually negotiated between landowner and land trust for each property – that perpetually restricts all future non-agricultural development of the property. The landowner retains title to the property, while being assured that it will stay in its natural, productive state forever. Land trusts, such as the Texas Agricultural Land Trust, meet their mission to conserve Texas’ natural resources and the agricultural viability of rural, working lands. And Texans are assured that those things so critical for our quality of life – water, food, and air – will be protected. Thus the conservation easement is an effective strategy to conserve the state’s natural resources without a huge outlay of public funds.
The permanent protection of private rural lands through conservation easements is one of the most cost-effective strategies to conserve our natural resources for the benefit of future generations. This proposal by LCRA challenges the integrity of the conservation easement, and undermines an effective tool for conserving the state’s critical natural resources. LCRA has taken the position that conservation easements should be given zero consideration by the PUC. Because 95 percent of Texas’ lands are privately owned, this decision has serious public policy implications for our watersheds, aquifer recharge zones, and wildlife habitat.
So why is this such a big deal? When large power lines crisscross ranches and farms, those lands more easily lend themselves to being chopped into smaller and smaller pieces. This in turn reduces the land’s ability to capture and clean our water, to produce food, and to support our wildlife.
The impending fragmentation of Mrs. Hershey’s land is just one reminder of what is happening around the state: Texas loses rural and agricultural land faster than any other state. Every ten years, we lose over million acres of working agricultural lands to development and an even larger amount to fragmentation. Recognizing the implications for the state’s natural resources, the Texas Legislature last year appropriated funding for non-profit land trusts to buy conservation easements from farmers and ranchers in key, strategic areas.
The Texas Public Utility Commission (PUC) is struggling with more than one decision that could stand to undermine this very effective tool, the conservation easement. Anyone who worries about the loss of rural lands – and the drinking water, wildlife habitat, and open space that those lands provide – should be deeply concerned. It’s a classic case of clashing public policy priorities. On the one-hand the State has recognized the need to protect rural lands with a conservation easement; and on the other hand, the State could authorize the taking of that land by condemnation for an electric transmission line. We as a State need to consider the irreversible implications.
Landowners in the area have filed for a rehearing before the PUC to request that impacts to lands protected by conservation easements be among the factors considered in the decision regarding the environmental impacts of land to be taken by condemnation. With these competing public policy priorities, it’s important that we ask: ‘What is best for Texas?’
Blair Calvert Fitzsimons is CEO of the Texas Agricultural Land Trust, which was created by leaders several statewide agricultural and landowner organizations who were concerned about the rapid loss of working lands in Texas. http://www.txaglandtrust.org