Washington State Conservation Commission’s Office of Farmland Preservation (OFP) is working to expand land access and farmland protection resources and tools in Washington. OFP’s Farmland Protection and Land Access (FPLA) program (established via proviso in the Washington State 2022 Supplemental Capital Budget (SSB 5651), Section 3050) encourages but does not require easement holders to include affordability provisions in easements funded by the program. In addition, participants of the Farmland Preservation Roundtable convened by OFP have identified agricultural conservation easement affordability mechanisms to be a priority area of research for Washington state.
In order to provide guidance to Washington agricultural easement holders on what options exist for affordability mechanisms, and under what circumstances they might be a good fit under Washington’s statutory framework, OFP contracted with Washington Farmland Trust (WFT) and Van Ness Feldman LLP (VNF) to first, identify and assess a series of possible conservation easement affordability provisions, and second, prepare a legal analysis of selected provisions.
In the final report provided to the SCC, WFT and VNF: (a) identify the benefits, challenges and unintended consequences of each of the identified affordability provisions, (b) the Washington state legal implications of each, and (c) identify possible future statutory strategies to support enforceability of a subset of the identified affordability provisions that have been used with success in other states.
OFP is providing this final report as a resource to Washington state farmland preservation practitioners who are considering adoption of agricultural conservation easement affordability provisions. Nothing in this report should be considered to be legal advice that would replace the advice of an easement holder’s independent legal counsel. OFP anticipates using the information contained in the report to develop and refine selected provisions and educational materials for easement holders to use and put these provisions to work.
