West Virginia Forest Legacy Program

The Forest Legacy Program, a voluntary program funded by the USDA Forest Service, works with state agencies and local landowners to protect environmentally important forests that are threatened with conversion to non-forest uses. The Program protects properties within areas designated by the state as important Forest Legacy Areas through conservation easements or fee-acquisition with willing landowners. In order to become a participant in the Forest Legacy Program, the State of West Virginia Division of Forestry conducted an Assessment of Need (AON). The AON evaluated existing forest resources and conditions, identified threats to WV forests, and designated Forest Legacy Areas.

The Conservation Fund was awarded the contract to complete the West Virginia Forest Legacy Program AON. The project was developed by The Conservation Fund with our subcontractors: The Sampson Group, Inc. and The Nature Conservancy of West Virginia and our public partners: the West Virginia Division of Forestry and the State Forest Stewardship Coordinating Committee. The AON was completed in June 2003.

West Virginia Forest Legacy Program Q & A

1. Is it required that a landowner sell the development rights or participate in the program?
No. Participation in the Forest Legacy Program is completely voluntary. For a property to be considered for the FLP, the landowner must apply.

2. Is the State required to purchase property?
No. Each parcel of property will undergo a thorough application and review process by the State Forest Stewardship Coordinating Committee. The parcel must meet certain guidelines developed based on the Assessment of Need to be considered for purchase. In addition, the State can only purchase property to the extent that funds are made available for that purpose.

3. Can I change my mind and take a parcel out of the program after I’ve sold the development rights?
No. You will have sold a partial ownership of the property. You may sell the property but the state will continue to hold a permanent easement that will be binding on future landowners. Remember, the goal of the program is to keep forests as forests; flexibility on this point defeats the purpose.

4. Who should apply?
Owners of forestland properties within the designated Forest Legacy Areas will be eligible to apply. Only landowners that are interested in permanently selling their development rights and accept that future use and value of their property will be impacted should apply. Priority will be given to properties that provide environmental benefits and will be maintained as working forest.

5. If I have already sold the mineral or gas/oil rights to my property to someone else, can I put the property in the Forest Legacy Program?
Probably not, because this means someone else may already own the right to use all or part of the surface for some use other than forest. Some limited gas wells may be allowable.

6. What is a conservation easement?
A conservation easement is a legal document that restricts development rights. A landowner chooses to convey a conservation easement in order keep the property protected as open space and/or working forest. A conservation easement is a set of property rights and covenants that restricts the use of the property to provide a natural resource conservation benefit and provides for monitoring and enforcement of those covenants by a third-party, usually a land trust or government agency.

7. Who decided the location of Forest Legacy Areas and the priorities for projects?
The Division of Forestry in cooperation with the State Forest Stewardship Coordinating Committee (SFSCC). The SFSCC is a broad-based committee of members who are appointed by the State Forester.

8. What is the Assessment of Need?
The US Forest Service requires an Assessment of Need (AON) report by the West Virginia Division of Forestry that describes the need for Forest Legacy, eligibility criteria, and approved Forest Legacy Areas.

9. Who is developing the Assessment of Need?
The Division of Forestry bid out the completion of the AON and the successful bidder was The Conservation Fund, a national land and water conservation non-profit with an office in Shepherdstown, WV, and 24 other locations across the country. The Conservation Fund, with its contractors (The Sampson Group and The Nature Conservancy of West Virginia) were responsible for working with the Division of Forestry and State Forest Stewardship Coordinating Committee to develop the Assessment of Need.

10. What can I do and not do within an easement area?
Under most easements acceptable uses include: timber harvesting (subject to a Forest Stewardship Plan), firewood cutting, gathering (fruits, roots herbs and mushrooms), hunting, other outdoor recreation (including non-permanent campsites), and production of non-timber forest products (maple syrup, vines, etc.) Under most easements unacceptable activities include: all buildings, mining or quarrying that requires surface disturbance, trash or refuse disposal.

11. Can the way the forest is managed, and what it is used for, change after it’s entered in the Forest Legacy Program?
Yes. As long as the new use is compatible with the long-term sustainability of the forest, the Forest Stewardship Plan can be amended.

12. Can I build a house, or make other improvements within the easement area?
No. Any part of the property that you may want to use for improvements should be excluded from the easement area at the time the parcel enters the program.

13. Does participation in the Forest Legacy program have any effect on other landholdings I have outside the conservation easement area?
No.

14. Do I have to let the public use the easement area of my property for recreation?
No. You still control access to your property. The only required access is for monitoring by the Division of Forestry. However, if you choose to make your property available for public recreation as part of the easement, its priority for participation in the program may increase, depending on the local situation.

15. Will a conservation easement keep my property from being taken for a road or utility project?
No. The property is still subject to eminent domain, just as it is now. It is possible that project planners may make more effort to avoid a “conservation property” but that is not guaranteed.

16. Will participation in this program make my property more likely to be targeted for acquisition by the state or federal government for public land?
No. You will, however, still be able to offer the remaining rights to your property for fee simple purchase as public or private land if you choose. Attempts to acquire it as public land for conservation purposes may actually be less likely because it is already serving conservation purposes.

17. Where does the money come from to buy these conservation easements?
Up to 75% of the money comes from the United States Department of Agriculture as part of the Farm Bill. The other 25% must come from non-federal sources, either as cash or in-kind contributions from state, municipal or private sources.

18. What are the benefits of the Legacy Program?

To the Landowner:

You receive a one-time cash payment for the development rights without having to give up ownership of the property.

You can protect your forest from being converted to some other use.

You can continue many of the uses of and gain income from the property.

You can assure a permanent green space within your community..

To the Community:

Permanent greenspace is provided in the community without removing land from the tax base.

Forest Legacy properties can continue to provide outdoor recreation opportunities and forest products.

Identifying these areas can help area planners determine community growth patterns and future infrastructure and service needs.

Allows future generations to enjoy the social and economic benefits of living and working in areas with a vital forest component. These “quality of life” factors are often important in recruiting high-paying, low-impact jobs.

19. What are the disadvantages of the Forest Legacy Program?

To the Landowner:

Permanent commitment to one type of land use for current and future owners.

Will likely reduce the potential future selling price of the parcel.

To the Community:

The loss of flexibility in future land use planning decisions may be considered a disadvantage.

The transfer of development rights to the state may cause a slight decrease in the property tax base, depending on local assessment.

This decrease is most likely offset by lack of demand for services from undeveloped property.

20. How much will Forest Legacy pay for development rights?
The rights to be purchased on each easement will be appraised to determine fair market value. In no circumstances can the program pay more than the appraised value of the rights to be purchased. The landowner can choose to donate the rights or sell them at a bargain price, which may provide tax benefits. The fair market value of an easement is the difference between the property's value "before" the easement (the unrestricted property) and the property's value "after" an easement (the restricted property). Development rights may also make up a large portion of the total value of a property in areas with high development pressures but a much lesser part of total value in areas with less development pressure.

21. What other states are participating in Forest Legacy?
Over thirty states are participating in Forest Legacy, including Virginia, Maryland, and Pennsylvania.

22. How much funding is available through Forest Legacy?
President Bush requested $91 million for the FY2004 National Forest Legacy Program (an increase of $20 million from FY2003). It is reasonable to assume $1-3 million may be available annually for West Virginia projects.