Guide to the Forest Legacy Program
Read the 5-year strategy for the Forest Legacy Program (FLP) published in December 2005. It is designed to improve accountability and performance. It will guide the FLP in building on its success and constantly improving over the next 5 years. It is intended to provide a national perspective for FLP and assist States in contributing to national and regional conservation needs. This strategy does not supplant State Assessments of Need or the FLP Guidelines. Download the strategy in PDF.
The Forest Legacy Program (FLP) provides federal funding for up to 75 percent of the cost of conservation easements or fee acquisition of forest lands threatened with conversion to non-forest uses. Prompted primarily by threats to northeastern forests, the program, established in 1990, was initially restricted to Maine, Vermont, New Hampshire, New York, and Washington State, but is now potentially open to any state with threatened forest land.
Many states are participating (see list on the USDA's website). It is the state’s decision whether or not to apply for the program. If your state is not on the list, talk to your state’s Department of Natural Resources director or State Forester about the program and ask them to join!
Originally, the Forest Service itself negotiated and purchased these easements, but in 1996, prompted by land trusts and Land Trust Alliance, Congress amended the law to allow the U.S. Forest Service to make grants to states, which can then undertake the acquisition themselves. This change has improved program efficiency and flexibility, and enabled land trusts to be more effective partners in the acquisition process.
Land trusts can participate in the program in a number of ways. They can help states with the planning required to join the program by actively participating in the preparation of a statewide Forest Legacy Assessment of Need plan. In some states, land trusts are members of the State Forest Stewardship Coordinating Committee that is involved in setting program priorities and reviewing landowner applications. Land trusts can also identify potential projects, negotiate and pre-acquire fee acquisitions or conservation easements, and monitor (but not enforce) conservation easements acquired under the program--all potentially reimbursable activities. Adjacent land or conservation easements acquired by land trusts can count toward the required 25 percent nonfederal match for Forest Legacy projects. In addition, land trusts' general skills in bringing landowners to the table, creative financing, and coordinating complex partnership projects can make these projects work where they might otherwise fail.
The Forest Legacy Program provides federal funds for:
- Purchase of conservation easements
- Fee acquisition
- Surveys, title work, and other activities to facilitate donations of land or easements for FLP purposes
- State FLP planning and administration.
Although FLP funds may be used for purchase of either conservation easements or fee title, the program has focused heavily on easements as states have shown the most interest in protecting conservation values while also maintaining economic uses including timber harvesting.
To participate in the Forest Legacy Program, a state must prepare an "Assessment of Need" plan (AON) that must be approved by the Forest Service. The assessment is prepared by the state forestry or natural resource agency–whichever is designated by the governor to serve as the lead agency for the program.
In preparing the assessment, that agency must work with a "State Forest Stewardship Coordinating Committee," made up of representatives of various groups interested in forest conservation. In many states, land trusts have asked for and received representation on the Committee.
The assessment must document the need for a Forest Legacy Program, establish eligibility criteria, set guidelines and identify priority areas for protection. Such areas must, at a minimum, meet the following criteria:
- Environmentally important forest areas, which include areas important for scenic, recreational, riparian, ecological, cultural, or traditional forest uses, and
- Threatened by conversion to nonforest uses.
Proposals for specific Forest Legacy Areas must identify the areas on a map, describe their environmental values and how they will be protected, identify the public benefits each project will yield, identify who will have management responsibility, and document the public involvement process. The assessment must be prepared with public participation and in cooperation with by the State Forest Stewardship Coordinating Committee before submission to the Forest Service. The Forest Service typically grants funds to a state to help cover the cost of the assessment, and state agencies may use the services of land trusts in preparing it.
The Forest Service requires that 25 percent of the total program costs come from nonfederal sources, which may include state and local governments, land trusts or other nonprofit organizations, or individuals. With grants to states for specific projects the cost-sharing becomes a condition of the grant and must occur within the life of the multi-year grant.
In practice, most projects are more highly leveraged, as Forest Legacy dollars are limited and states attempt to devise projects that will stretch the federal dollar. The nonfederal contribution may come from matching funds or in-kind contributions and may include direct and indirect costs associated with planning, acquisition, capital improvement, management, or administrative activities.
Donations of land or conservation easements to land trusts may count toward the match. Such donations must be documented, but title may remain with the land trust. Donations must meet the following criteria to qualify for a match:
- The donation must meet the objectives of the state AON;
- It must be at least partly within the boundaries of a designated Forest Legacy Area;
- The property must be permanently protected;
- The deed must require that any proceeds resulting from a sale or exchange of a conservation easement be used in a manner consistent with the easement's purposes;
- The donation must not have been used to match any other FLP project;
- The state lead agency must approve using the donation as a match; and,
- The donor must request at the time of transfer that the donation value be used as an FLP match.
Once the state assessment is approved, the FLP may be implemented in one of two ways:
- The Forest Service can purchase land or easements directly; or
- The state may receive grant funds and acquire land or easements in Forest Legacy Areas itself.
Regardless, whenever FLP funds are used to acquire a tract, including whenever funds are used for pre-acquisition work by land trusts, federal acquisition procedures must be followed. The most significant of these are:
- Federal appraisal standards must be met, the landowner must be informed of the fair market value of the easement or title, and the sale of the property must be voluntary;
- Title must be free and unencumbered or title insurance must be secured; and,
- No more than fair market value may be paid.
For every acquisition, the state must also determine whether mineral rights need to be acquired to protect the conservation values at stake. Where a landowner retains the right to harvest timber under a conservation easement, the landowner must enter into a forest management agreement with the appropriate state agency before the easement is finalized. Future modifications to such plans may be approved by the responsible state agency.
The Forest Legacy Program may be operated through Forest Service direct acquisition or, at the option of each state, through a state grant program.
- Forest Service Acquisition: In federal acquisitions, the state determines the process by which landowners may apply to sell land or an easement. The state sets application requirements, receives applications, and reviews them with involvement from the State Forest Stewardship Coordinating Committee. The state lead agency works with state or regional Forest Service staff and the Coordinating Committee to select priority projects to be submitted for approval. The Forest Service, the state agency, and any other partners including land trusts sign a Memorandum of Understanding (MOU) specifying roles and responsibilities regarding costs, planning, acquisition, management, and administration. The federal government acquires and holds title to land or easements acquired by the Forest Service under the FLP. The Forest Service may delegate management and enforcement responsibilities for Forest Legacy lands to state or local government, but not to land trusts. However, the state in turn can delegate its management and enforcement authority to a land trust if the Forest Service approves. In addition, a land trust may contract with the Forest Service for easement monitoring or for specific management activities (although the Forest Service has not provided funds for such purposes to date, and does not anticipate doing so), and/or the land trust may be given responsibility for monitoring in the MOU governing the state's Forest Legacy Program.
- State Grant Program: Once a state opts for the state grant program, the state is generally responsible for all FLP transactions, although case-by-case exceptions can be made by mutual agreement to allow the Forest Service to acquire the property interest instead. State or local government must hold any land or conservation easements acquired with state grant funds. Thus, land trusts cannot use the funds to buy land or easements that they would hold. Land trusts may, as under the federal program, own land or easements donated as an FLP match. Grant funds are allocated to Forest Service Regions, which will in turn make the grants to the states. The regions will request funds with specific state projects in mind. Thus, states will receive funds targeted to specific projects. States may use FLP grant funds for the purchase of land and easements, to facilitate the donation of land or easements (including a donation to a land trust) and for program administration expenses. Acquisitions must follow the previously discussed federal standards and procedures.
Forest Legacy Successes
1,145,586 acres have been protected as of February 2006. See a list of acres protected by state as well as a list of funded projects by Fiscal Year.
Land trusts have been essential partners in the Forest Legacy Program and can participate in the following ways:
Serving on the State Forest Stewardship Coordinating Committee. The 1990 law establishing one of these committees in each state specifically identifies land trusts, if applicable in the state, as one of several groups that should be represented on the committee. Serving on the committee offers an opportunity to be at the table where private forest land and management issues are discussed.
Helping prepare the Assessment of Need. States may use the services of land trusts in preparing this initial planning document, and FLP funds can be available to states for this purpose. Tennessee contracted out the preparation of their AON to a statewide conservation organization.
Bringing landowners and projects to the table. The Forest Legacy Program may purchase only from willing sellers. Land trusts have played an essential role in identifying such sellers in Forest Legacy Areas. Equally important, land trusts have "sold" the program to the landowners, explaining how it works and how it could be advantageous for them. Land trusts can serve an important role educating the public, where potential sellers are unfamiliar with conservation easements.
Helping structure and negotiate the project. As with any land conservation project, a land trust may need to help structure the project so it meets the landowner's needs and advances conservation. In one FLP project, the Forest Service was interested in purchasing an easement on the landowner's property, but the landowner, a timber company, was unwilling to own a property in which the federal government would hold an interest. However, the landowner was willing to sell. So the land trust purchased the property, sold the easement to the Forest Service, and made up the difference through fundraising and a small limited development project. Sometimes the land trust's role is less defined (although just as essential). Jay Espy, President of Maine Coast Heritage Trust, says one of the most critical roles a land trust can play in the Forest Legacy Program is to be the "patient, progress maker"--the go-between that keeps the parties talking with each other and keeps the project moving forward.
Assist in acquisition. In an FLP acquisition, the government's timing may not be the same as the landowner's. Thus a land trust may need to pre-acquire a property or easement, hold it while appraisals and legal documents are finalized and/or until the funding comes through, then transfer it to the government. However, all such transfers must be done in consultation with the state land acquisition agency or the Forest Service to insure that state or federal agency will ultimately purchase the property. Sometimes the landowner may be willing to sell an easement only if the land trust agrees to continue to play a go-between role during the project. In one project, The Trustees of Reservations (TTOR) in Massachusetts was retained as a consultant by a landowner to facilitate negotiations and the acquisition process. In fact, when the landowner found the Forest Service's easement option contract unacceptable, TTOR played an intermediary role, negotiating (for $1) an option from the landowner and granting a similar option to the Forest Service.
Help provide the cost-share match. Land trusts can help provide the required minimum 25 percent nonfederal cost-share--most importantly by acquiring easements or other property in the Forest Legacy Area. Donations of land or easements to land trusts may count toward the cost-share, and federal funds may be used to cover the costs of completing the donation, including the cost of surveys, title work, baseline documentation, and completion of a forest management plan.
In fact, a donation of land or easements in the Forest Legacy Area may qualify as an FLP project on its own, in which FLP funds could be used solely to facilitate the donation. Any land or easement acquired with the help of FLP funds must meet the federal acquisition standards outlined above. Monitor easements. The Forest Legacy Program does not provide funding for easement monitoring. Nevertheless, land trusts have in certain cases agreed to play a monitoring role, usually where the FLP easement is in the same area as or adjacent to land trust easements. In Massachusetts, FLP funds purchased an easement in a project area in which a land trust received donations of several other easements. The land trust will monitor the FLP easement along with its own easements in the area, with costs by endowment funds raised for monitoring the other easements.
Participate in state grant programs. The FLP state grant program is used by most states with land trusts playing all of the roles above and more. This is especially true in states where land trusts have established a relationship with the state lead agency through other state acquisition programs. Still, the stprogram will have to adhere to certain FLP requirements. Only approved Forest Legacy Areas will be eligible for funding and federal acquisition procedures and standards must still be followed.
Participate in Forest Legacy Program Reviews. Federal oversight through program reviews is a necessary part of the program and another area where land trusts can highlight success stories and the continuing need for the program.
U.S. Forest Service Forest Legacy website: http://www.fs.fed.us/spf/coop/programs/loa/flp.shtml
- Federal and State Coordinators (PDF on USDA Forest Service Web site)
- Forest Service Cooperative Forestry Landowner Assistance Website
- State Forest Server Landowner Assistance
State forestry agencies deliver Forest Service landowner assistance programs to private landowners.