The 2nd meeting of the Land Stewardship and Conservation Task Force was held on Thursday, August 13, 2009, at 1:00 PM, in Room 129 of the Capitol Annex. Senator Brandon Smith, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Brandon Smith, Co-Chair; Hugh Archer, Larry Arnett, Elizabeth Bennett, Frances Brown, William Brown, Mark Dennen, Don Dott, Bob Marrett, William Martin, K.A. Owens, and Bruce Williams.
Guests: Representative Charlie Hoffman; Greg Kuhns, vice president of the Kentucky Woodland Owners Association; Darrin Moore, Administrative Services Director for the Kentucky Department of Fish and Wildlife Resources; and Lynn Garrison, formerly of the Kentucky Department of Fish and Wildlife Resources.
LRC Staff: Stefan Kasacavage and Ashlee McDonald.
Senator Smith, Chair, called the meeting to order. A quorum was present. Chair Smith asked Lynn Garrison to give his presentation on the necessary elements of successful land conservation legislation.
Mr. Garrison began by stating that he formerly worked for the Kentucky Department of Fish and Wildlife Resources and that he had always had an interest in state land conservation legislation. In preparation for his presentation, he reviewed land conservation legislation from every state and how that legislation was funded. He also spoke with many state officials who administered their states’ conservation programs to determine what aspects of their state programs were working. In order to gauge public sentiment and perception with regard to different state programs, he also read local newspaper articles on the implementation and administration of state land conservation programs. Mr. Garrison thanked the task force for allowing him to participate in giving input to the legislative proposals that the task force would recommend. He then stated that we all talk about our rich natural heritage in Kentucky and what it means from the standpoint of aesthetic, ecological, educational, cultural, recreational, and scientific values. If we are going to enjoy these values in the future, then it is necessary that we do something now to protect those interests.
Mr. Garrison started his presentation on the essential elements of good land stewardship and conservation legislation. He stated that a title must be carefully chosen in order to meet Kentucky constitutional standards and to accurately convey what the legislation would be about.
Mr. Garrison continued by discussing the two largest land conservation programs in the country, Florida and Minnesota. The Florida Forever Act (2000), which extended Florida’s land conservation program until 2020, provides $300 million per year for land conservation and acquisition. Florida has acquired a total of 3.8 million acres of conserved land and 2.4 million acres of that has been purchased through the Florida Forever Act and its predecessor the Florida Preservation 2000 Act (1990). Minnesota recently enhanced its funding for land conservation acquisitions by enacting a 3/8 of 1% sales tax increase. The Florida and Minnesota programs are so big with so much money to spend that it has become a problem for them to administer their land acquisition programs. Both states have a separate land division that can make land acquisitions without going through other state agencies, which greatly expedites the land acquisition process. Maintaining a streamlined land acquisition process is crucial for being able to take advantage of good land acquisition opportunities while they are still available. Only programs as big as those in Minnesota and Florida acquire enough land to justify these separate land divisions.
Legislative findings are not usually included in Kentucky legislation, even though they are almost considered key elements of federal legislation. Including these findings helps to convey the purpose for enacting the legislating as well as enhances transparency of the legislation to the average reader. Although specific definitions to be included in the bill were not discussed, Mr. Garrison posited that the definitions section of the bill will likely be exhaustive and crucial to how the legislative proposal would function.
The legislative proposal must establish a board to administer funds for land conservation and acquisition. The board could be tied to an existing board such as the Heritage Land Conservation Board or the PACE Board, or it could be an entirely independent board. The role of the board and its composition will depend heavily on how the funds will be used in the legislative proposal. Regardless, it would probably be necessary to appoint a broad diversity of people to the board.
The board should be required to develop a comprehensive statewide land stewardship and acquisition plan; other successful state conservation programs as well as the federal government have developed these plans. The statewide plan should broadly outline the conservation strategy that should be pursued and prioritize Kentucky’s land conservation needs. State agencies and other groups that seek money from the fund should then be required to develop land conservation plans that are consistent with the statewide plan. This would increase the efficiency and wisdom with which the funds would be spent. All of the latest techniques would be deployed in formulating these plans including GIS and technical expertise from all the natural resource management agencies. The plan would contain measurable goals and would be routinely revised and updated to track the state’s current conservation needs. It would be wise for the board to employ some technical assistance to provide advice to the board on how to most wisely and efficiently expend its funds, assuming that the amount of funds that the board is administering warrants such assistance.
The legislative proposal should clearly articulate the purposes for which the conservation funds must be expended. States have enacted land conservation legislation with varying specificity as to purpose. Those that have been more specific have been more successful in avoiding unnecessary infighting and delay in expending their funds. Mr. Garrison outlined many purposes that he believed should guide the spending of land conservation funds in his PowerPoint presentation, which is on file at the LRC library.
Mr. Garrison continued by discussing land acquisition tools, other than purchasing land in fee simple absolute, that the board would be able to implement to most efficiently protect the most land as possible. These tools would include tax credits for conservation donations, transfer of development rights, purchase of agricultural conservation easements (PACE), forest legacy programs where lands are acquired that are part of a working landscape, tax relief like the Michigan circuit-breaker tax, differential assessment laws for agricultural, forest, and conservation lands, mitigation ordinances and policies – for every acre developed, an acre is conserved, and cooperative conservation, which is the most efficient strategy for conserving the most land for the least money.
The legislative proposal should also establish a dedicated land stewardship and conservation fund. As previously discussed, the proposal would have to include the purpose of the fund, how the fund would be administered, who would administer the fund, who would be eligible for moneys from the fund, and from where the revenues for the fund would come. The source of revenues for the fund is one of the most important aspects of the legislative proposal. Revenue sources for land conservation programs in other states include dedicated portions of state lotteries (AZ, CO, ME, MN, NE, and others), constitutionally protected fractional sales tax increases (AR, MN, MO), dedicated portions of existing sales taxes (TX, VA, NJ), real estate transaction taxes, document taxes (Florida Forever is primarily funded by a document tax and a phosphate tax), tax incentives or credits for conservation donations (16 states), general obligation and revenue bonds, gambling/gaming taxes, mineral leases (LA, MI), user fees, impact fees, cigarette taxes (PA raises $20 million/year for land conservation this way), and general fund appropriations (Wisconsin appropriates $86 million/year).
Chair Smith asked Mr. Garrison if he believed that alternate uses of conserved land, such as setting up concessions on those lands with money coming back to the state, would be a good idea. Chair Smith said that the Chesapeake Bay is one of the places that allows an alternate use like this.
Mr. Garrison responded that he was somewhat philosophically opposed to it because he had seen instances where on some federal lands the use of concessions has gotten out of control. In these instances, concessionaries were allowed to dictate how the conserved lands could be used. A legislative proposal that would include this kind of alternate use for conserved lands would have to be very cautious to prevent any exploitation of the conserved lands.
Mr. Brown commented that in difficult economic times, it is desirable to convert conserved lands into more profitable alternate uses. A proposal should carefully guard against this tendency.
Chair Smith agreed and explained that in some instances, such as the Grand Canyon, concessions pay for new access opportunities that would not have been available otherwise. A balance could be struck that would allow for these new opportunities to be afforded by alternate use without allowing profit motive to exploit the conserved land.
Mr. Garrison agreed that access to the land could be enhanced by alternate uses if it is appropriately controlled.
Mr. Garrison continued by discussing how much revenue the proposal should seek to raise for land conservation. Kentucky has over 25 million acres of land, conserving 10% is 2.5 million acres, and 1% is 250,000 acres; the conservation of even this tiny bit would be very expensive. Revenue raising mechanisms that would require a large amount of funds to be raised at one time have less of a chance of passing than funds that were slowly collected over time, such as fractional sales tax increases. Constitutional amendments containing fractional sales tax increases are also politically palatable because the voters of the state shoulder the political responsibility for imposing the tax on themselves.
Chair Smith asked how much of the property acquired by states was property that was donated to the state as part of a decedent’s estate or for the purposes of tax benefits.
Mr. Garrison replied that 16 states have tax credits for the donation of conservation easements. These states have enjoyed an incredible interest in these programs, so much so that there are many instances where states do not have the funds available to accept all of the lands into conservation programs that have applied.
Mr. Archer commented that groups were trying to pass federal legislation that would make tax credits permanent for the donation of land into agricultural conservation easements. He also added large forest blocks, watersheds, and wildlife corridors should be included in the land conservation goals in the legislative proposal.
Mr. Garrison agreed, in a mock draft of a legislative proposal that he did, he included those specifics.
Mr. Marrett asked if there was more information on land conservation programs in states like Arkansas, Indiana, West Virginia, and Tennessee that were economically similar to Kentucky. Specifically, he wanted to know how much of a sales tax increase Arkansas had dedicated to land conservation.
Mr. Garrison responded that Arkansas was very economically and geographically similar to Kentucky and that they had implemented a 1/8 of 1% sales tax increase for land conservation purposes which raises about $40 million per year. Recent polling in Arkansas has shown that the program is now overwhelmingly popular, even though the amendment only passed by .2%. It now has over 80% support from the general public.
Mr. Dott asked what Mr. Garrison’s goal would be for the percentage of land in Kentucky that he would like to see conserved.
Mr. Garrison responded that he did not have a scientifically based response, but 12% seems to be a popular goal for other states. Mr. Dott added that a statewide conservation plan would be very helpful, and Mr. Garrison agreed.
Mr. Archer commented that he believed that South Carolina’s heritage board gets $25 million per year for land conservation purposes from its land transfer tax, which was much more than the $3 or $4 million that Kentucky got per year. Tennessee and Georgia also collects much more in transfer taxes for conservation purposes than Kentucky. Unlike all of the other southeastern states, Kentucky does not have a state tax credit for donation of conservation easements nor is there a transfer or docket stamp tax. Kentucky stands out in the southeast for the minimal amount of revenues it raises for land conservation purposes.
Mr. Garrison stated that Kentucky stood out in the country as far as money raised for land conservation and for the amount of land conserved.
Dr. Kuhns asked if Mr. Garrison could expand on how cooperative conservation works as a tool for land conservation.
Mr. Garrison responded that cooperative conservation programs include working with landowners to enhance wildlife habitats, having cooperative agreements with recreational groups to develop trails, and working with private individuals to do a better job of conserving their own land. Cooperative conservation also includes working with non-governmental organizations like The Nature Conservancy and the Land Trust Alliance.
Dr. Kuhns asked if in other states there were tax incentives or direct funding to support cooperative conservation. Mr. Garrison stated that there were tax incentives for donations of land for conservation purposes.
Mr. Williams commented that he believed that the essential elements of the legislative proposal would include creating a new source of dedicated funding at the state level, having some inter-agency coordination mechanism, and developing a statewide strategy for land conservation. He would like to work with task force members in putting a draft legislative proposal together for the next meeting for discussion. The other members agreed.
Mr. Archer commented that a current bill before Congress would put $900 million back into the land and water conservation fund. In Kentucky, the $1-3 million allotted to the state per year goes to state and local government. In every other state in the country, it goes to the state department of natural resources for land acquisition programs. Since much more money will now be coming into the state through this fund, it would useful for the task force members to stay apprised of how the money is being spent.
There being no further business, Chair Smith adjourned the meeting.