Conserving Heritage Lands: Tools & Benefits of Including Historic Resources
in Conservation Easements
Tiffany Osburn Texas Historical Commission
Claude Ross
Natural Resources Conservation Service
Jeff Crosby Colorado River Land Trust
Heritage Lands in Texas
• Historic Ranches and Farmsteads • Historic trails and roads • Battlefields • Frontier forts • Stone walls and associated lands • History of oil and gas development • Spanish colonial missions and presidios • Historic communities and school houses • Prehistoric sites – Archeological sites
San Felipe de Austin
Burned Rock Midden Site
Why Preserve Historic Places for the Future?
• More than 12,000 years of men, women and children living, working and playing in Texas. The items they left behind are the archeological sites that can tell their stories.
• Sites are more than soil layers containing lost or discarded objects, instead they are repositories that contain the stories and evidence of human history and cultural development.
• Sites are depletable, nonrenewable resources. Often sites are damaged or destroyed by development.
Loss of Sites = Gaps in the Story
Why preserve Texas Heritage Lands? • Texas Pride and Identity
• Connection of generations to the land, agricultural heritage
• Place-based legacy
• Heritage Tourism – Economic benefit
• Public benefit
Preservation of Heritage Lands
2015 Economic Impact Report Tourists love historic places. More than 10 percent of Texas travel is heritage related, with $7.26 billion in annual visitor spending related to history-based tourism. Historic preservation supports tens of thousands of Texas jobs. Heritage tourism supports 54,000 jobs in Texas; historic preservation supports 79,000 jobs (2013 numbers). Historic building rehabilitation rebuilds communities. Private and public institutions in Texas invest a total of $772 million in historic preservation projects, making a significant economic impact in communities across Texas. Historic properties attract significant reinvestment. Every dollar from federal and state incentive programs triggers $4–$5 of private sector investment, spurring $1.78 billion in private-sector rehabilitations, and creating 35,000 in-state jobs and more than $2.4 billion in Texas GDP.
Historic Preservation in Texas
Private Lands in Texas
Urban sprawl destroys Historic Landscapes
Federal and state laws must consider the effects of their projects on sites and historic places. But considering the 95% private ownership of Texas land – private landowners are relied upon to preserve and protect historic lands as the best stewards of these resources.
Stewardship is Key!
Benefits of Partnership - Preservation and Conservation
1. Public benefit – 2 scales
2. People care - Landowners with preservation/conservation ethic 3. Land conservation strategy provides the best preservation tools
available
4. Landscape perspective to historic preservation
5. Additional consideration – new partners and funding sources, routing analysis
6. Mutually beneficial goals and outcomes – partnership results in the preservation of more land
1. Public benefit – 2 scales
• Ensuring the inclusion and protection of heritage resources in land conservation has great public benefit. a) At the individual private site level preservation of sites serves to
archive data in a “library” that will be available for future generations.
b) At the Community level – preservation of land around historic sites and preservation of historic sites/ homesteads etc. themselves can have economic impact for heritage and natural resources tourism)
2. People care - Landowners with preservation/conservation ethic
Historic preservation and land conservation constituencies
are often the same – people with a preservation ethic that
consider themselves stewards of the land
Landowners care about this stuff too
3. Land conservation strategy provides the best preservation tools available
• Conservation easements can be better preservation tools than anything offered by cultural resource management (CRM) or preservation because it includes the collection of baseline documentation, annual monitoring, incentives, perpetuity.
4. Landscape perspective to historic preservation
• When land conservation strategy is used for preservation, a historic landscape perspective is taken rather than a narrow site-based focus. This historic landscape perspective recognizes the link between modern, historic, and prehistoric people and the land, water, and wildlife resources that attracted them.
Flip Side
• Conservation benefits from a holistic view of our land that includes:
Natural resources Wildlife habitat Natural processes Prehistoric land use Historic land use (ex. Ranching heritage) Current and future human factors
5. Additional benefits may include:
• New partners
• New funding sources
• Recorded archeological site data is used in transmission line planning and routing analysis.
6. Mutually beneficial goals and outcomes –
Partnership Results in the Preservation of more Land
Practical Considerations and Tools
1. Outdoor recreation or education of the general public.
2. Protecting a relatively natural habitat
3. Preserving open space if it yields a significant public benefit. The open space must be preserved either for the scenic enjoyment of the general public or under a clearly defined federal, state, or local governmental conservation policy.
4. Preserving a historically important land area or a certified historic structure.
Qualified Conservation Purposes
IRC Section 170 (h)
2. Protection of a relatively natural habitat -Does not require public access 3. Preservation of open space - often includes buffer lands -Requires visibility 4. Historically Important Land Area – includes: a) An independently significant land area including any related historic resources (ex. an archeological site) that meets the NR criteria for evaluation. -Requires limited visual public access with exceptions
IRS Qualified Charitable Contributions of:
Public Benefit
26 CFR 1.170A-14
Funding and financial assistance for Land Conservation
Agricultural Conservation Easement Program (ACEP)
Claude Ross Natural Resources Conservation Service
Agricultural Act of 2014 Enacted February 7, 2014
Agricultural Conservation Easement Program (ACEP)
Agricultural Conservation Easement Program ACEP
Agricultural Land Easement (ALE) Wetland Reserve Easement (WRE)
Authorized Funding Limits §1241 (a) (2)
• 2014 - $400 Million • Texas – ALE $1.7 million; WRE $4.5 million
• 2015 - $425 Million • Texas – ALE $4.5 million; WRE $3.9 million
• 2016 - $450 Million • Texas – ALE $6.6 million; WRE $4.5 million
• 2017 - $500 Million • Texas – ALE $5.8 million; WRE $4.1 million
• 2018 - $250 Million • ?
2009-2012 – WRP, GRP & FRPP combined averaged $775 Million/Year
Agricultural Conservation Easement Program (ACEP)
Agricultural Conservation Easement Program (ACEP) Agricultural Land Easement (ALE)
Land Eligibility (subject to a pending offer) and: 1. Contains prime soils (at least 50%) 2. Has historical or archaeological resources 3. Further a state or local policy consistent with ACEP purposes; or 4. Protect grazing uses and related conservation values
• That is:
• Cropland (includes orchards) • Rangeland • Grassland • Pastureland; or • Non-industrial forestland
Agricultural Conservation Easement Program (ACEP) Agricultural Land Easement (ALE)
Historical or Archaeological Resources • Listed in the National Register of Historic Places (established under the
National Historic Preservation Act (54 U.S.C. Section 302101 et seq.)), • Formally determined eligible for listing in the National Register of
Historic Places (by the State historic preservation office (“SHPO”) or Tribal historic preservation office (“THPO”) and the Keeper of the National Register.
• Formally listed in the State or Tribal register of historic places. • Included in the SHPO or THPO’s inventory with written justification as
to why it is eligible for the National Register of Historic Places. The agricultural land easement deed must address the protection of the historical or archaeological resources as required by Secretary of the Interior’s “Standards for the Treatment of Historic Properties.”
Agricultural Conservation Easement Program (ACEP) Agricultural Land Easement (ALE) Ranking Historical or Archaeological
Sites 1. Diversity of resource types within each
individual parcel (i.e., a parcel contains more than one type of historical or archaeological resource)
2. Acreage of resource site 3. Association with existing community
identity 4. Nationally significant designation (i.e.,
the parcel contains a national designation versus a State designation)
5. Other criteria established by the State Conservationist, with advice from the State Technical Committee
Agricultural Conservation Easement Program (ACEP) Agricultural Land Easement (ALE)
If the presence of historical or archeological sites is the basis for land eligibility, a brief description of the site’s significance and documentation of the site’s formal listing on the National, Tribal, or State register or eligibility for listing in the National register must be included in the application.
Agricultural Conservation Easement Program (ACEP) Agricultural Land Easement (ALE)
ACEP-ALE Match Requirements • Federal share provided by NRCS will not exceed 50 percent of the fair
market value of the agricultural land easement
• Eligible Entity must provide a share at least equivalent to the NRCS share
• The eligible entity share must provide its own cash resources in an amount that is at least 50 percent of the NRCS share
• The remaining 50 percent can be a qualified contribution from the landowner
• Acquisition cost CANNOT be used as match
• Must be cash from a non-federal source
Agricultural Conservation Easement Program (ACEP) Agricultural Land Easement (ALE)
2014 Farm Bill provides an exception to standard ACEP-ALE match requirements:
ACEP-ALE projects of Special Significance • NRCS may waive a portion of the eligible entity’s cash
contribution requirement, if: • There is a voluntary, equivalent increase in the private landowner
donation; and
• The land is in active agricultural production
• NO increase in the Federal share provided by NRCS
• Requires a written request from the entity at the time of application or 90 days prior to closing.
Project of Special Significance Sec. 1468.24
One criteria: • Listed on the National Register of
Historic Places or is a traditional cultural property
Texas NRCS Acquisitions
FRPP – 6586 acres
GRP – 21,833 acres
WRP – 92,104
WRE – 2096 acres
ALE – 482 acres
224 Easements
122,163 acres
"The U.S. Department of Agriculture (USDA) prohibits discrimination in all of its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, political beliefs, genetic information, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD)."
Claude Ross
Natural Resources Specialist
101 South Main
Temple, Texas 76501
254.742.9822
NRCS Programs website: http://www.tx.nrcs.usda.gov/programs Follow on Twitter: http://twitter.com/NRCSTexas Like on Facebook: http://www.facebook.com/USDANRCSTexas Subscribe to our YouTube Channel: http://www.youtube.com/USDANRCSTexas
FRPP Grant assistance for an easement preserving the historic ranching heritage of a 1870’s homestead.
Examples
Other Examples
FRPP grant funded easement in Hays County – prehistoric midden site was critical to land eligibility for the program (2 examples) - In the absence of prime soils, the presence of a significant prehistoric
midden site made the property eligible for grant assistance. However, not every site rises to this level of significance. Sites must be formally recorded and evaluated by the SHPO.
Significance
Criteria for Evaluation The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and: A. associated with events that have made a significant contribution to the broad patterns of our history; or B. associated with the lives of significant persons in our past; or C. distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, D. have yielded or may be likely to yield, information important in history or prehistory.
National Register of Historic Places (NRHP)
Archeological Sites in Texas
Benefits of Documenting Sites
• Entirely voluntary
• Documented historical lands and sites on a property can boost grant scoring for certain federal and local funding sources for conservation
• Potential routing avoidance by linear projects – constraints maps used for the development of alternatives includes archeological sites
• Regional syntheses and smarter predictive models
Q. If I let an archeologist record or study an archeological site on my land, will I risk losing my property? A: No. THC has no rights of eminent domain. Regional archeologists work with landowners and can recommend voluntary actions to protect and preserve important sites. Q. Isn’t there a law that protects important archeological sites? A: Laws and regulations govern public lands but no legal protection applies to private property unless the landowner voluntarily chooses to have a specific site designated as a State Antiquities Landmark. Vandalism and criminal mischief charges may still apply. Q. What can be done about looting of an archeological site? A: If the site is on public property, the appropriate authorities are notified to prosecute the offenders. If the site is on private property, the landowner should be informed as well as local law enforcement and prosecution should be pursued. Q. Is access required if historic sites are recorded? A: No access is required for a recorded archeological site on private land. Not even to researchers or acheologists. Q. Can my grandkids still pick up arrowheads? A: Yes. Archeological sites and artifacts on private land are the sole property of the landowner.
FAQs
Restricted Cultural Resource Information
Site information is exempt from the Texas Open Records Act: The following categories of information are Restricted Cultural Resource Information (RCRI) (1) All archeological survey site location and site record information that contains location descriptions, coordinate data, or spatial imagery that would allow an individual to determine the location of an archeological site. (2) The address or site location of historic structures or other non-archeological cultural resources nominated for or listed in the National Register of Historic Places or registered as State Archeological Landmarks, if the owner of the property has specifically requested that such information not be distributed to the general public. (3) The site location of cemeteries determined by the commission to be at risk of harm.
Texas Administrative Code, Title 13, Ch. 24
Additional Resources and Potential Partners
• Buffers for historic sites, preserves, and parks, leveraging grant funds
• Community, Agency, or Historical Societies partnerships offer potential acquisition projects (commonly used in other states) related to important local historic resources
• Texas Preservation Trust Fund grants • Future alternative mitigation solutions (redirecting mitigation $ to
preservation easements may funnel expenditures to sites with greater potential for long term preservation rather than those that are more threatened)
Protect Scenic Vistas of Historic Lands
Predictive models to aid in transportation planning and cultural resource compliance. These maps for ArcGIS present the relative likelihood for National Register of Historic Places-eligible prehistoric archeological sites to be preserved in the near surface (less than three feet) or at deeper levels in the mapped areas. Mapping files are available for five TxDOT districts.
Potential archeological liability maps (PALMs)
Terms of the Conservation Easement – An Example
• Purpose Clause The Property is a significant natural area that qualifies as a “…relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,” as that phrase is used in P.L. 96-541, 26 USC 170(h)(4)(A)(ii), as amended, and in regulations promulgated thereunder. In particular, the property: • Conservation Values Stated
1. contains significant historic and prehistoric archeological sites 2. provides outstanding scenic qualities 3. is habitat for federally-listed endangered species including, GCW
• Restrictions & Reserved Rights Grantor will not engage in any activity that will in any way damage or negatively impair the archeological and historic resources located on the property as identified in the EDR and/or the soil survey map as described in the conservation plan provision set forth herein.
• Administrative Sections
• Exhibits
* Site locational data and maps should not be filed with the deed records
Exhibits
• Baseline Documentation Report -Will contain current site description, background, conditions, maps
• Management Plan -May include suggested avoidance or treatment measures, monitoring recommendations, prescriptions for management, and identification of goals for future
Historic resources may not be a part of your land trust’s mission. But wait… You’ve got a partner!
THC Landowner Assistance Program
Landowners and Land Trusts can benefit from: • Free archeological survey and site recording by staff and/or volunteer
stewards • Free site eligibility determinations • Free expertise and assistance from professional archeologists and volunteers • Free application for protective designations • Defense of SAL designated sites • Support for baseline document related to historic resources • Language and recommendations for management plan • Provide the land trust key things to look for during annual monitoring • Public Outreach and Advocacy • Partnership
* Site locational data and maps should not be filed with the deed records
State Antiquities Landmark (SAL) designation
• SAL cannot be removed, altered, damaged, salvaged, or excavated without a permit from the THC.
• Entirely voluntary on private land – private ownership retained
• Designation also gives the owner of the property an additional avenue to
prosecute persons who vandalize the site.
• SAL offers additional protection of site areas under State Law that an easement may not offer
• Best protection of historic resources may layer conservation easement and SAL
• Deed restriction – conveys when sold
• No public access required
• No cost associated with designation
• Can continue traditional land use practices
• No requirement to maintain
Criteria for Evaluating Archeological Sites (1) the site has the potential to contribute to a better understanding of the prehistory and/or history of Texas by the addition of new and important information; (2) the site's archeological deposits and the artifacts within the site are preserved and intact, thereby supporting the research potential or preservation interests of the site; (3) the site possesses unique or rare attributes concerning Texas prehistory and/or history; (4) the study of the site offers the opportunity to test theories and methods of preservation, thereby contributing to new scientific knowledge; and (5) there is a high likelihood that vandalism and relic collecting has occurred or could occur, and official landmark designation is needed to ensure maximum legal protection, or alternatively, further investigations are needed to mitigate the effects of vandalism and relic collecting when the site cannot be protected.
State Antiquities Landmark Designation
• Site Recording
• State Antiquities Landmark Designation • Conservation Easements
• Layered Approach
*not every site merits preservation
Tools for Preservation of Historic Resources
Conservation Easements – the Best Solution for Historic Preservation!
• Protection of natural, productive, and cultural qualities of private land
• Private ownership retained and ability to continue traditional land use
• Flexibility to customize easement documents
• May have significant tax benefits to landowners
• Granted in perpetuity -runs with the title
• Monitored – when sites included in baseline and easement – (SAL’s don’t include monitoring!)
• Broader landscape approach – links historic sites to the natural landscape
• Potentially avoided by routing analysis when feasible (recorded sites, SALs, and easements*)
*Inherit a partner with legal backing
Examples
Conservation Easement and SAL designation
Nature Conservancy – Dobbs Run - Preservation of historic and prehistoric archeological sites was a priority
for the Smith Family
Colorado River Land Trust – Smithwick Mill - Preservation of archeological sites including a homestead and historic
mill on Lake Travis
Colorado River Land Trust - Hudspeth Ranch - Preservation of 7 prehistoric and historic archeological sites is THE top priority for the landowner.
Examples
Thank you!
