Conservation easements don't always protect land 'forever' in Florida
Conservation easements are supposed to shield land from development forever, not enable it years down the road.
But in Florida, at times key road connections — or political connections — trump the habitat connections biologists say are vital for wildlife.
Conservation easements are legal agreements between property owners and government or a nonprofit to preserve the land as a farm or open space. In exchange, landowners keep the title and get tax breaks or other benefits.
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They also avoid estate taxes that could force their heirs to sell instead of keeping the land in the family. The property owners can keep farming or continue other "low-impact" uses on their land. Other times, they can even do captive hunts with imported non-native species.
For government or nonprofits, it's a way to protect land for much cheaper than buying property outright.
But a review of federal and state data and documents obtained by FLORIDA TODAY shows the deals can fall short of what was promised, or unravel altogether, when development deals arise:
Florida agencies routinely release conservation easements. Many times the easements were originally created to offset development that destroyed wetlands elsewhere, to meet federal rules for "no net loss" of wetlands.
Often, releasing easements is as easy as asking the politically appointed boards of agencies that manage those lands, such as the Florida Fish and Wildlife Conservation Commission or the state's five water management districts.
It's uncertain exactly how many easements and what total acreage gets released in Florida, because government agencies that manage them each keep separate records. But those agencies assure they more than make up for what's released via other donated lands or habitat restorations given in exchange so net conservation lands are increasing.
"Conservation easements are not forever," said Lesley Blackner, a Tallahassee environmental attorney who's been challenging easement releases for years. "It's just a gentleman's agreement."
The road to splitting up habitat
The latest example is a proposal to FWC to release 160 acres from conservation easements in Split Oak Forest Wildlife and Environmental Area to extend a tollway just south of Orlando. The state agency is expected to decide whether to release the easement in coming months.
The trees on Split Oak were once tapped for turpentine farming, but now some of those trees stand in the way of the economic growth that extending a tollway promises to bring.
Central Florida Expressway Authority and developers want the Split Oak easements released for 1.3 miles of a nine-mile, $800 million tollway through the forest to extend Osceola Parkway (State Road 534) from State Road 417 to Cyrils Drive, just south of Orlando.
The road extension would ease traffic and spur growth. But activists see Split Oak as a bellwether for how Florida will handle preservation lands in the future and to what degree those agreements can withstand development pressure.
Some worry that if the easements are released in Split Oak, the same can happen on greenspace anywhere in Florida. Then, more landowners might back out of promises made years ago not to build on their rural land in exchange for tax breaks or other perks they often don't have to pay back when they renege on the deals.
Each side of the debate predicts Split Oak will set precedent. One side foresees dire outcomes, the other a healthy balance between growth and preservation.
"We view this as a signature project that will be used to guide the development of future transportation corridors throughout the state, much as the Wekiva Parkway did a dozen years ago," Deputy Osceola County Manager Tawny Olore, told FWC commissioners at their Dec. 5 meeting.
Easement releases echo bigger conservation bait-switches
The Split Oak saga is part of a much bigger drama playing out in Florida over how agreements for state grants or loans to help buy open spaces and the easements to protect those lands, can be undone years later — easily and legally. Conservationists warn that easement agreements often can be more a temporary tax dodge than long-term preservation plan.
The issue drew in former president Donald Trump. His 2022 donation of a conservation easement for his 184-acre Blue Monster golf course in Doral, Florida, near Miami, raised questions about inflated valuations and resulting tax breaks of more than $120 million.
To their critics, easements echo Florida's notorious "rent-a-cow," or "greenbelt law" that dates back to 1959, when orange groves covered the state and agriculture was the state's primary industry.
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Florida enacted that law to help "bona fide" farmers fend off the financial temptation to develop rural lands. But the law's vague wording let owners lease land to ranchers who strained the definition of farming. They'd put less than a dozen cows on questionable pastures, to save thousands in taxes as they readied to build anyway when the time was right.
Complicating matters with Split Oak is a lawsuit that could further set precedent for Florida conservation lands and how much control local governments maintain.
Osceola County is suing Orange County over the validity of Orange's 2020 charter amendment (which voters passed by an 86% margin) to guard the 1,640-acre Split Oak Forest from future development. The land is jointly owned by the two counties and managed by FWC. Roughly 1,000 acres of the forest is in Orange and the rest is in Osceola, where the toll road extension would go.
Thirty years ago, the two counties acquired the land for Split Oak for $8.6 million: with a $3.6 million grant from Florida Communities Trust — a state land-buying program; a $2.7 million loan from FCT to Osceola County; and $2.3 million from Orange County.
Conservation easements were set up to keep Split Oak off-limits to roads and other development. So Osceola's suit hinges on how significantly agreements for such state grants are allowed to stray from the reasons the land was set aside in the first place.
On Feb. 19, Circuit Judge Margaret H. Schreiber heard Orange's motion to dismiss the case. Her ruling is expected soon.
Easy to ease out of Florida easements
Under Florida law, owners can get a partial property tax exemption of up to 50% on certain land under conservation easement if the land is used for commercial purposes such as farming. Landowners also can tap into other financial perks, including a conservation tax assessment for lands they commit to conservation for at least a decade.
But whether for farming or development, compared to other states, Florida sets a relatively low bar on backing out of easements or other agreements that result in huge tax breaks or government grants to help guard greenspace, critics of the process say.
"I call it the 25-year amnesia," said Kimberly Buchheit, a land surveyor in Central Florida who plotted out Split Oak's easements 30 years ago. "This is why agreements are put in writing."
Florida's easement issue also came to a head in 2019, when Gov. Ron DeSantis rescinded appointments of then St. Johns River Water Management District Chairman John Miklos and two other board members.
Miklos stepped down later that year in the wake of ethics complaints, one regarding his involvement with the district's release of a conservation easement to allow additional development at an Orlando-area construction project, Contractors Business Park, where his Orlando firm, Bio-Tech, was a consultant.
Florida seems to stand out for its ease in releasing conservation easements: In Georgia, one must go to court to get a conservation easement released, Blackner notes, and Vermont also lacks an 'automatic right' of easement removal. In Arkansas, easements are "forever" unless drafted to be released or one goes to court to release them.
Who's tracking Florida's conservation easements?
State law requires Florida Department of Environmental Protection to maintain a database of state and federal conservation easements, which gets updated every five years. So while the overall acreage going into easements has increased in recent years, the inventory doesn't have to include easements that get released, so that sum remains mostly unknown, as are the total tax breaks resulting from conservation easements in Florida.
According to FLORIDA TODAY'S analysis of state and federal data and documents:
FWC has released nine conservation easements totaling 1,471 acres since 1995, most of them in the past few years. The most recent release happened in 2019, when the agency terminated a 161-acre conservation easement at the Boy Scouts of America (BSA) Camp La-No-Che in Lake County after less than six years. FWC cited legal controversies that arose between the parties over the validity of the easement and its execution. FWC ended the easement based on settlement agreement of a court case.
DEP's conservation easement database lists 9,828 state, federal and local conservation lands and easements totaling 2.28 million acres in Florida. DEP's website cites 140 conservation easements and land protection agreements that the state agency has acquired since the late 1990s, protecting some 262,000 acres.
Nationwide, there's also no definitive source of the total lands in conservation easement or how many get released, but estimates of private American land in easements tops 40 million acres, including 5 million acres of easements — an area the size of New Jersey — enrolled in federal agriculture programs.
Florida law lets conservation easements happen
Conservationists have fought for years to get Florida to close loopholes in state law that make it easy — relative to many other states — to release conservation easements. Blackner wrote an Oct. 23 letter on behalf of Bear Warriors United, a nonprofit based in Oviedo, urging state legislative leaders to strengthen the law. So far, at least one legislator has taken up the cause, vowing to introduce a bill next session to close those loopholes: David Smith, R-Winter Springs.
Bear Warriors cites several prominent examples of controversial conservation easement releases, including SJRWMD's release of an easement a decade ago in southern Volusia County, just beyond the Brevard County line within the Farmton Mitigation Bank. The release came at the request of Farmton, which said the easement had been created by mistake because of an error determining right of way for a road to accommodate future development. Conservationists lost a legal challenge of that assertion and release of the easement.
Mitigation banking works by restoring or preserving land to offset the loss of critical habitats to construction of homes, businesses, roads and other developments elsewhere. When the land is restored or preserved, the mitigation bank then sells or issues “credits” to the developing entity to enable them to develop other areas so there is no net loss to the environment. But releasing conservation easements within those banks years later can defeat those purposes, critics of the process say.
Often the future release of a Florida conservation easement is baked into the original deal with government.
In 2008, SJRWMD released almost 70 acres of a 2,546 acre conservation easement back to the Kempfer cattle ranch in southwest Brevard County. The original 1998 purchase and sale agreement allowed the option for Kempfer to buy back up to 640 acres of the easement.
But state agencies involved in easements point to deals that often can result in a net conservation wins.
In July 2021, SJRWMD accepted ownership of 2,130 acres of an existing proprietary conservation easement it bought in Ocklawaha Prairie in Marion County, Florida, from an agreement in 2000 that said that would happen in 20 years or upon the death of the owners, whichever happened first. The district paid $2.3 million for the easement and a 50% share in any timber harvest revenue.
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As when other such easements get released, doing so in Split Oak would fragment habitat, conservationists warn. The property — once a turpentine and cattle farm — was set aside to protect threatened tortoises and other imperiled species that biologists say need contiguous space to survive. Otherwise, those species face inevitable "genetic bottlenecks" that cause inbred wildlife populations to plummet.
But the developers who want the new tollway — with the massive Deseret Ranches chief among them — also see their plan as a net benefit for conservation. They propose to donate 1,550 acres nearby to expand Split Oak. The Central Florida Expressway Authority, funded via toll collections, also is offering $13 million to FWC for habitat restoration and management of that donated land.
Tavistock Development Co. and Suburban Land Reserve — the real estate leg of Deseret Ranches, which is owned by Church of Jesus Christ of Latter-day Saints — is offering the 1,550 acres in exchange for releasing the easements.
But much of that is wetlands that can't support gopher tortoises, the nonprofit Gopher Tortoise Council wrote in a Nov. 30 letter to FWC. Only 223 acres of the total is "potentially suitable for tortoises," the council wrote.
In the long-run, releasing such easements also jeopardizes a much bigger picture, environmentalists warn: the 18-million-acre Florida Wildlife Corridor — 10 million acres of which is protected conservation land.
"The state is buying development rights off the land," Blackner said. "But what's to uphold this years down the road? Certainly not law."
Florida sends mixed messages on conservation
Sometimes conservation easements are places to kill animals, not preserve them. In March 2023, DEP acquired a conservation easement over 1,285 acres on Lightsey Family Ranch in Highlands County for $4 million. But part of the deal allows the owners to continue to import non-native game animals raised in captivity for "canned" trophy hunts.
Controversies aside, recent indications show Florida upping the ante on easements as way to keep rural areas intact — at least for now. In 2022, state legislators appropriated $300 million for the Rural and Family Lands Protection program and applications have since far outstripped available funding.
In May, the governor and the cabinet approved nine easements covering more than 18,000 acres at a cost of $57.6 million, through the program. The action marked the largest acquisition ever approved at a single meeting through the department’s Rural and Family Lands Protection Program. That bumped to about 86,580 acres protected under the program's 67 conservation easements, agriculture officials said at the time.
Further bolstering the program was a law last year that enabled the state department of agriculture to acquire conservation easements of less than $5 million without approval from the governor and cabinet.
On March 6, DEP announced the state's $26 million acquisition of 16,200 acres of conservation lands, completing conservation easements within the Avalon, Etoniah/Cross Florida Greenway and several other large land purchases to expand the Florida Wildlife Corridor.
But Blackner and other Florida environmental watchdogs wonder just how long any of those easements will last, once developers see dollar signs and the next big deal.
Meanwhile, FWC is negotiating a plan to mitigate for any future release of Split Oak's conservation easements to ensure a "net benefit" to the environment.
Buchheit will believe it when she sees it.
"It's all become a shell game," she said. "The whole thing is a farce."
Contact Environmental Reporter Jim Waymer at jwaymer@floridatoday.com.
This article originally appeared on Florida Today: Conservation easements in Florida don't always protect land 'forever'
