How could a new Working Waterfront Conservancy model help address access needs?

Based on the land trust model
Inspired by the successes of the Working Waterfront Access Pilot Program, traditional land trusts and initiatives like the Maine Farmland Trust, working waterfront advocates have proposed the formation of a private, nonprofit Working Waterfront Conservancy. This conservancy would exist as a state-recognized, not-for-profit corporation, exempt from taxes under Section 501(c)(3) of the Internal Revenue Code (IRC). This status is granted to charitable organizations that provide specified public benefits. Like a traditional land trust, a Working Waterfront Conservancy could purchase lands outright for holding, purchase the development rights to properties for holding, or accept donations of either land or restrictive easements.

Working waterfronts likely don’t currently qualify as charitable deductions
A traditional land conservancy is able to claim tax-exempt status and to certify donations of land or covenants for charitable deductions to the extent that the organization’s supervision of these lands provides a significant public benefit recognized by the federal tax code. The key tool in this framework is the conservation easement, which imposes limitations or restrictions on real property to the benefit of the holder. In order to qualify for charitable deduction purposes, the gift must be “exclusively for conservation purposes,” which the existing IRC articulates to include public recreation or education; protection of fish, wildlife or plants; conservation of property with demonstrable historic value; or preservation of open space, farmland or forest, so long as it is for the scenic enjoyment of the public and consistent with a clearly delineated government program. (Note that working waterfronts are absent from this existing statute). Of the 49 states with legislation enabling conservation easements, 27 also have state-level programs designed to purchase agricultural conservation easements on qualifying farmland. These programs, known in the agricultural context as PACE (Purchase of Agricultural Conservation Easement) Programs, operate in the same fashion as Purchase of Development Rights and also exist at independent and local levels in 18 states.

Steps toward qualifying
As noted, preservation of land as a working waterfront is not currently a recognized public benefit under either Section 501(c)(3) or Section 170(h) of the Code. But it could be argued, for example, that commercial aquaculture is analogous to commercial agriculture, and/or that working waterfronts have significant historic, cultural and even scenic value. In the end, though, because the statute specifically mentions preservation of agriculture and forestry, but omits any mention of aquaculture or fisheries, a judicial interpretation of the statute as it stands now would likely not allow these or other working waterfront uses to qualify for tax exemption or for charitable tax deduction. Therefore, in order for working waterfronts to qualify as charitable deductions, it appears that it may be necessary to amend the Internal Revenue Code.

As a point for further research, it should be determined whether nonprofit working waterfront organizations constitute qualifying charities for the purposes of this deduction. Working waterfront stakeholders could begin by researching past IRS rulings on this issue and, if necessary and feasible, seek an on-point ruling from the IRS. This finding would inform further action such as pursuing Internal Revenue Code amendment.

As with the initiative to appropriate direct federal funding for investment in working waterfront preservation, amendment to the IRC would likely require a long-term strategy to inform stakeholders, legislators and the voting public.