A few years ago, an environmental lawyer named Jessica Owley set out to learn how well it works when the federal government allows development in the habitat of an endangered species. Under the terms of these deals, introduced in the 1980s to mollify opponents of the Endangered Species Act, the developers provide mitigation, typically with a conservation easement on some other parcel of private land.
Owley focused on four California examples, out of the almost 700 so-called Habitat Conservation Plans (or HCPs) that now exist nationwide. She had a long list of questions, from “Where are the protected parcels?” to “How do endangered species fare in the face of these deals?”
“I ended up being stopped at the first question,” says Owley, now a professor at the University of Buffalo Law School. “It wasn’t just that I couldn’t find the HCP sites, but the U.S. Fish and Wildlife Service didn’t know and couldn’t find them.” In one case, an HCP to protect the Mission blue butterfly outside San Francisco, nobody had even bothered to record the easement in municipal land records. Owley came away thinking that a lack of transparency is standard for conservation practices on private land — even when these practices are paid for by taxpayers and meant to serve a significant public interest.
Conservation on private land costs the public hundreds of millions of dollars a year. Just from 2008 to 2012, for instance, landowners donating conservation easements claimed tax deductions that cost the U.S. Treasury $1.6 billion. (Land is typically conserved either by outright purchase or, less expensively, by easement — a deeded agreement by the owner to protect a property in perpetuity.) That’s in addition to a host of other costs — for instance, local property tax reductions for managing land in a particular way, or federal programs that pay farmers for conservation initiatives on their land.
The public often has no way to know how its money is being spent or whether it’s a good deal for the environment or the taxpayer.
These programs provide enormous public benefits, with easements alone protecting an estimated 40 million acres of natural habitat in this country. And yet the public in many cases has no way to know how its money is being spent, or whether it’s a good deal for either the environment or the taxpayer. Over the past 10 years, the National Conservation Easement Database has made a concerted effort to fix that. It’s managed by the Trust for Public Land (TPL), a nonprofit group working on open space issues with communities nationwide, and Ducks Unlimited, a nonprofit focused on wetland protection. The database currently maps and provides information on 158,422 conservation easements, encompassing about 27 million acres of land nationwide. That represents about two-thirds of the estimated 40-million-acre easement total. (TPL also maintains the Conservation Almanac, mapping the results of federal, state, and local funding for land conservation over the past two decades. The U.S. Geological Survey maintains a national inventory of public protected areas, but that covers just 60 percent of state, regional, and local holdings.) Yet tens of millions of acres of protected land, representing hundreds of millions of dollars in conservation spending, are either missing or with incomplete data. The degree of transparency also varies wildly depending on whether you happen to be looking at the local, state, federal, or international levels.
In 2017, the U.S. Office of the Inspector General lambasted the Interior Department for “putting grant funds at risk of waste and abuse” by failing to track how much it spends to purchase land for conservation, how much land it has purchased, and whether grantees are putting that land to its intended use. Of 561 grants for land purchases in fiscal 2014 and 2015, at a cost of $574 million, the Inspector General found that only 56 percent of the grantees had even bothered to file the follow-up reports required by the department.
Private protected areas may be even more important for conservation efforts internationally. In Guatemala, for instance, almost 20 percent of the total protected area is in private ownership. The International Union for Conservation of Nature currently has a working group looking at these protected areas, and Michael Mascia of Conservation International says his group has “compiled hundreds of datasets from dozens of countries” with the aim of building a comprehensive Conservation Atlas combining private and public areas.
But it’s still a work in progress. A study published last week in the journal Biological Conservation found that scientific studies tend to pay attention to private protected areas in just four countries — the United States, Canada, Australia, and South Africa. Half the time, these studies also contain no evidence that the authors engaged with any of the stakeholders.
The lack of transparency — and attention — can leave investments on private land vulnerable to abuse. In one recent case, Wyoming’s Jackson Hole Land Trust discovered a house being built in the middle of a conservation easement intended to protect the “Path of the Pronghorn” migration route. The builder, coal industry billionaire Chris Cline, agreed to donate another easement nearby. But the incident left some conservationists seething.
Incomplete and rudimentary data about publicly funded conservation initiatives on private land also makes them substantially less beneficial than they could be, according to the University of Wisconsin’s Adena Rissman. Conservation planners and researchers working in a landscape must now often proceed more or less blindly. But if they had proper geographic information system (GIS) data, including exact locations and boundaries of easements and other conservation initiatives on private property, they could, for instance, identify critical gaps in a wildlife corridor, develop better plans to manage forests more sustainably, and target new conservation initiatives more precisely to improve water quality, prevent soil erosion, or provide other practical benefits, including recreation.
Transparency advocates acknowledge there may be legitimate arguments for protecting information about some conservation sites.
In some cases, having detailed knowledge about conservation initiatives on private land can be a matter of public health, says Craig Cox, vice president for agriculture and natural resources at the Environmental Working Group. For instance, agricultural runoff commonly pollutes downstream drinking water with excess nitrate levels. In Iowa, the Des Moines Water Works sued unsuccessfully to make upstream agricultural drainage districts share in the cost of an $80 million technological fix to reduce nitrates in drinking water to safe levels. But it could be more effective to do the job at the source, says Cox, with conservation practices like maintaining buffer strips along streams, planting off-season cover crops to reduce runoff from fields, and intercepting drainage water before it gets into streams. And taxpayers already pay farmers to employ many of these practices—but detailed information about these transactions is generally unavailable.
“If we knew more specifically where these practices are being installed,” says Cox, “it would create the opportunity to target the most effective practices in the areas where they are most needed. There are dozens of drinking water utilities in the same watershed that are also in trouble with nitrates,” says Cox. “Most of these are smaller community water systems, and it’s really the rural people that are as much at risk themselves.”
In the 2018 Farm Bill, Congress pushed the Department of Agriculture to take steps toward transparency about conservation initiatives. But it didn’t require development of tools to make that information available to researchers.
Transparency advocates acknowledge that there may be legitimate arguments for protecting information about some government-funded conservation sites — for instance, to avoid exposing rare species or cultural artifacts to unscrupulous collectors. Landowners also worry about loss of privacy, trespassing, and vandalism. Government information systems are often “not well designed,” says Amos Eno of the Land Conservation Assistance Network, a private landowner organization, “and there’s no safeguard for information divulged.” The purpose of conservation easements, he adds, isn’t to provide data “for scientists or people pushing scientific agendas” but “to help land owners and their stewardship.” Making information about their properties public could just leave them vulnerable to an endangered species listing, he suggests, citing the recent fight following discovery of the endangered bone cave harvestman, a Daddy Longlegs relative, on a ranch near Austin, Texas.
A Colorado audit found that tax breaks to landowners were often a bigger driver of such deals than any benefits to wildlife.
That discovery resulted, however, from a highway construction project, not a leaky public information system. “The way to deal with legitimate privacy concerns,” says Craig Cox, “isn’t to eliminate all possibility of accessing any data at all.” A better model for handling information, he suggests, is the U.S. Census Bureau, which has demonstrated the potential to grant access to sensitive data “under different restrictions, based on the type of data you’re looking for, how it’s going to be used, and by whom. There’s no reason that kind of approach shouldn’t also be used with these conservation investments.”
“We’ve made tremendous progress in terms of transparency,” says Andrew du Moulin of TPL, and so far it has not caused any significant issues for landowners. But when skittish land trusts and others request secrecy, the databases maintained by TPL comply, on the theory that it’s better to have the easements catalogued in one place, even if not publicly displayed.
More often, he adds, the problem in trying to track down publicly funded conservation easements is simply a lack of basic record keeping. “Budgets get in the way, capacity gets in the way, and mapping isn’t first and foremost in the minds of many agencies.” In Colorado, for instance, auditors examined a conservation easement program that has protected more than 1.7 million acres in the state since 2000, at a cost of almost $1 billion in tax credits. The audit found that no state agency keeps track of the types of land being preserved, and suggested that the tax break was often a bigger driver of such deals than any benefit to wildlife or the environment.
The same problem occurs with open space purchases funded by public bond issues. When TPL phones jurisdictions afterward to ask, “What have you bought with the money,” says du Moulin, the common response is “We’ll get back to you.” But “when the money for open space runs out, you want to go back to the taxpayers and get more money. If you can’t tell them what you did with the money before, how can you expect them to approve giving you money again?”
TPL aims instead not just to map easements and open space acquisitions but to analyze the economic impact — typically at least a $4 return for every $1 invested in open space, and in some cases as much as $11, according to du Moulin. It also analyzes data in terms of state legislative districts. “If you have a legislator who’s opposed to a conservation program, and you can show that people in that district have had 2,000 acres protected, or a popular farm, it can be very persuasive,” he says.
The bottom line is that keeping conservation deals secret is not just unwise, but also increasingly unlikely. Satellites can spot changes in a landholding from one week to the next, drones can fly anywhere, and databases keep the results in public view. “We live in an era when people expect transparency,” says Ernest Cook, also of the Trust for Public Land. “There’s a great deal of pressure on the government and the private sector to release information, and if they don’t release it, somebody hacks it and releases it anyway.” The smart response, when it comes to public conservation initiatives on private land, is to make sure the results look good not just for the landowner, but for the environment and the taxpayer, too.