& Private Lands Feedback from 1997 Workshop Participants Incorporated in the Lease

FEEDBACK ON DRAFT LEASE: MAY 1997 WORKSHOP

| Draft Lease: Miscellaneous Comments | Draft Lease: Comments on Specific Articles |

DRAFT LEASE PRESENTATION: FEEDBACK FROM THE ASSEMBLY

Miscellaneous Comments (14 comments)

1. It seems to me that the primary outcome of discovering more listed species on the land must be made to be a happy event rather than a distressing one. This could be done building in an existing panther protection lease -- more listed species could then add money to the lease payments without significant additional landowner inconvenience.
   
2. We need to avoid a scenario whereby landowners collect lease money annually in exchange for non-development of land (that he wasn't ready to develop anyway), and then the lease ends and he proceeds with urbanization of the land without further delay. The conceptual goal has to be that the "good" acres are never developed unless it is clear that panthers are not there (and unlikely to be there), and there are no other major listed species present.
   
3. Replace the term "BMP" with a term that is better understood by the general public, i.e. "conservation management practices," or something of that sort.
   
4. Don't replace the term agricultural use with land use.
   
5. Better definition of open space.
   
6. Everything seems to be aimed at agricultural landowners. What incentive is there, other than estate tax exemption, to entice non-agricultural open land owners to participate? If they don't participate, their land may get developed with houses, or held for future speculation if there is no demand for houses now.
   
7. Residential units, barns, administrative buildings, etc., should be outside of the leased premises.
   
8. Does a hunting lease constitute a sub-lease? Will a landowner be required to provide a list of all leases?
   
9. The term "whole farm plan" has evolved at DEP and Ag to be a replacement for permit-by-permit and BMP-by-BMP imposition. If what you want is not that, please use another descriptive term to avoid agency confusion. (It was suggested that the simple term "farm plan" be used.)
   
10. Lease: Flexibility to adapt to 25 year lease term -- use intensities may change -- BMPs will change as technology advances.
    
11. The phrase "landowner's lease" needs to be changed to bring balance, if for no other reason than P.R. I would suggest paragraphs written by agencies or inserts by them to give funding entities escapes and assurances equivalent to landowners, etc., or reduce "landowner issue" references.
    
12. Defaults and remedies/environmental noncompliance -- need to have penalties and/or defaults and remedies regarding non-compliance by lessor. Don't want landowner to be able to get out of lease with no penalties simply by environmental non-compliance. E.g ., don't want lessor defaulting after five years and without penalties -- getting payments for a few years, then opting out whenever he wants to do something different with their land.
    
13. Rights, duties -- compliance with government regulations is a subsection. This is important enough to make this its own section with additional language saying that other sections do not relieve the lessor of the obligation to comply with laws, regulations , etc.
    
14. Use of property -- future uses -- transpose "lessee" and "lessor" in first sentence -- lessee won't be applying for permits, but lessor may.

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DRAFT LEASE PRESENTATION: FEEDBACK FROM THE ASSEMBLY

Comments Related To Specific Lease Articles (47 comments):

1. It needs to include a clause so that if the owner needs to build a home to live in or a barn (for reason of existing one(s) burned, expansion, or say child is grown, married, works on farm/ranch and desires to live on property for any personal/family use) s o they cannot be denied right to build, take into account certain areas may not be allowed already -- cypress pond. Building "personal," "farm," "family" dwelling(s) -- OK (Article I, l page 24)
   
2. Article 1 does not lease "agricultural rights" (somewhat covered under Article 2, but Article l should reference Article 2) since agricultural development = clearing (vegetation, citrus and sugarcane, not ranch) = habitat impacts. I don't see how this is protecting habitat or how this clearly establishes a "status quo." Example: if a landowner goes from semi-improved range, citrus even in same location, habitat impacts occur. Also timber-rotation OK, but if everybody clears at once across region -- no forest.
   
3. Section 170 of the Internal Revenue Code has a provision for estate tax credit for the donation of a perpetual easement which meets certain tests. The tax credit is tied to the value of the easement. Are we really talking about exemption from "any estate tax that shall arise. . .etc.?" or some percentage of that tax based on value? It doesn't seem likely that the IRS would allow a $20 million tax credit for a $20 thousand value for example. (Page 25 / Article 1.1)
   
4. Why are both sentences needed? First sentence has amount, second sentence states credit equals amount due on all net income. (Rent 1.2)
   
5. Agricultural production -- change definition to not include mining. (Article II, page 24 use of Article 2 prop.)
   
6. Remove first part -- it is too specific. Add language to second part cumulative and secondary impacts.
   
7. (1 and 2) "Agriculture" or "land use" needs a better definition; (3) Lessor and lessee seem to be backward in this item since the lessee would not be applying for permits to change land uses; (4) "unless terminated sooner" needs to be further defined.
   
8. Unless there is a more detailed management plan that defines habit management and allowed agricultural production, there is no guarantee of good habit management. to guide the landowner or provide a basis of determining success of the program. Need overall whole farm plan that has a map showing, for instance, all the pine flatwoods areas described management (burn, timber, cabbage palm removal) etc. Lease must reference detailed management plan or there's really no public interest assurance here -- too one-sided. Also look at conflict between species management. (2.1)
   
9. Termination exit clause -- add option of lessee to continue lease. Discussion regarding whether to wait for panther to be declared extinct, or perhaps instead, a statement by USFWS that the panther population is non-recoverable, or some such finding. (Article 3)
   
10. On increased rent with denial of land use. There should be an ""earnest money" type of retainer to support the intention to change land uses. The trigger for this should be land proposal of use change, not permit denial. The land use change would involve anything that would change the value of the land to the FL panther. (3.2)
    
11. County Ad Valorem; etc. Tax exemptions within the state must be included within the enabling legislation.
    
12. #3. 1.1 "'Estate tax credit" -- need to further define how much (%, etc.).
    
13. 1.3 The lessor should not get the credits on land that has no value to the panther and is in high intensity agriculture.
    
14. 1.5 Surface/sub-surface water rights should not exceed those existing at onset of lease.
    
15. 2. Define when and how much greater the base rent would be increased /under what conditions to avoid abuse.
    
16. 4. There are no provisions for compensation for losses of livestock from panthers. This would be unfair to those not able to participate (i.e. small landowners outside HPP boundaries).
    
17. Does not allow landowners who already have conceptual permits (and are not likely to get denied construction permits) a trigger to get into the process (their permits won't be denied and, in many cases, they have already received reviews for panther mpacts). Need a lower level trigger to get them in.
    
18. Consider Defenders of Wildlife's program to provide payments to ranchers who have successful wolf dens on their property.
    
19. Do we want to cap the income tax credit? Otherwise we may encourage more intense and profitable agricultural uses to the detriment of habitat. We may also establish a set credit amount (of lesser value) that has a carry-over provision for years of no income. (3, 1 & 2)
    
20. You may not wish to tie the appraisal to the "income approach." The IRS won't want that either. (3 Rent, 1.1)
    
21. What triggers entitlement? Should be tied to impact on panther habitat. 3(2)
    
22. These conditions are controlled by federal government. The federal government will want to be a signatory to this lease. (3 Rent. 1 - 1 & 2)
    
23. Land in priority that is not green belt classified. How do we plan to address? Keep in mind that all land involved is not necessarily agricultural. (3, 1, paragraph 6)
    
24. We need to define what actions need to be taken in order for the compensation to be given -- some agency action? And it has to be shown that the landowner had a committed intent and the means (capitol) to conduct the expansion. (3, 2)
    
25. "Other cash and non-cash methods of compensation." This needs to be defined more clearly. The members of the original working group said this was undefined, and they said a cash payment would be the amount of the income tax credit, but then what's the difference if the landowner's income makes a credit of no value, then there would be no cash. This whole thing is unclear. And how do you determine a cash payment in place of the estate tax credit? When would it be paid? (PAGE 25, 4)
    
26. Provision for a new rule or regulation that interferes with intent of lease. (Article 6, Rights, duties)
    
27. How does the lessor know if s/he is taking actions that interfere with the intent of the lease? Isn't a technical/expert evaluation needed? How does anyone figure this out if there were no baseline data? (Article 7 (2); Article II)
    
28. Research studies on land access and trust issue. (7-4, between B and C)
    
29. Again, the lessor should not be able to change the value of the landscape to panthers (outside of BMPs and Agricultural operations that currently exist or have been approved) without any comment from agencies and other parties involved. (7-1)
    
30. Recommend a third uninvolved party should police the lessee and lessor. Also define "disrepair." (7-2); Define "any waste of the land." (7-2A)
    
31. Access to the property by the lessee should be negotiated with each landowner and should be allowed at any time as long as the lessee contacts and requests access in a reasonable amount of time before access is desired. (7. 4B)
    
32. This would appear to allow new dikes and canals (which could drain the wetlands or change surface water flow and therefore impact the habitat). Use word "existing" (not talking about ditch maintenance or moving rim ditch locations, etc. -- talking about new drainage features that were not part of the original plan and would impact habitat quality). (7)
    
33. Owner family should not be disallowed to fish and to hunt on property. Possible limitations on number of animals taken, but not total disallowance. Maintain healthy deer/hog population so that hunter and panther can coexist. (7, 4A Quiet possession)
    
34. Should be more often than every 5 years -- every 1-2 years is in the public interest if public funds are used. Also aerial is too restrictive -- copters are useful but fixed wing is not acceptable. (We'd be doing a poor job as public representatives if we can't do better than this.) Not very scientific, not the way we do assessments of habitat quality. (7B)
    
35. Do not assume all land in question is used for agricultural production. Rephrase to current land use. (Article 8, Section 1)
    
36. Does not necessarily obtain input from the US Fish and Wildlife and other agencies to develop the whole farm plan. (Article 9, OVRCS)
    
37. Change to farm plan could be requested by any involved party. This would allow changes to be made when changes in economy or panther landscape use changes. (9.1)
    
38. Add language to the lease that reflects the need to include an aerial photograph.
    
39. Updates should also reflect current and/or changing panther conditions. (9, 1)
    
40. This compensation should not apply if the area was changed to agriculture after the lease began, i.e., area is in natural habitat, landowner converts the area to agricultural use, then decides to restore the area at some point in the future. (10, 2)
    
41. Actions for non-compliance should focus on loss of compensation, not default of lease. There is no incentive to continue lease without a penalty. (Article 10, 3)
    
42. Clarify this. If lessor polices himself, lessee may not ever be apprised of non-compliance. (Article 10, 4)
    
43. Default of lease as a result of improvements that do not further the lease intention is a disincentive to maintain the lease. The landowner should inform the lessee of any changes that could affect the value of the parcel to the panther. (Article 11)
    
44. Need a paragraph for lease cancellation before completion of term. (Article 12, Termination or extension)
    
45. Renewal time periods should be flexible with compensation on a sliding scale. (12, 2)
    
46. Renewals for 5 or more years. (12, 2)
    
47. There should be an evaluation period to determine the value of continuing the lease for the purpose of ecosystem restoration/protection. The lease should not automatically cease if the panther is extinct. This makes an incentive to accelerate extinction once the lessor has compensation. (12, 3)

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