DEPARTMENT OF REGULATORY AGENCIES Division of Real Estate CONSERVATION EASEMENTS 4 CCR 725-4 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] A-1 QUALIFICATIONS FOR CERTIFICATION TO HOLD CONSERVATION EASEMENTS Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Division of Real Estate (the “Division” ) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules Section 4. Definitions Section 5. A-1 Qualifications for Certification to Hold Conservation Easements Section 6. Enforcement Section 7. Effective Date The Division of Real Estate adopts the following permanent rule entitled, Qualifications for Certification to Hold Conservation Easements , according to the authority found in section 12-61-720 (11) C.R.S.

In 2008, Governor Bill Ritter, Jr. signed House Bill 08-1353 into law. This law effectively established the regulatory framework for conservation easement holders that accept a conservation easement donation for which a state tax credit is claimed. Pursuant to section 12-61-720(1), C.R.S., the Colorado Division of Real Estate, in consultation with the conservation easement oversight commission, shall establish and administer a certification program for qualified nonprofit and government entities that hold a conservation easement for which a tax credit is claimed. The purpose of the program is to establish minimum qualifications for certifying organizations to encourage professionalism and stability; and identify fraudulent or unqualified applicants as defined by the rules of the division to prevent them from becoming certified.

In determining whether to grant or deny certification, the Division of Real Estate and the conservation easement oversight commission may consider the following: the applicant’s process for accepting conservation easements, stewardship practices and capacity, finances, governance, unique circumstances, and any other information deemed relevant by the Division of Real Estate or the conservation easement oversight commission. Accordingly, the Division of Real Estate created an application for certification based on these considerations. The purpose of this rule is to establish the required minimum qualifications for certification. This rule applies to any nonprofit entity and any government entity that hold conservation easements for Section 4. Definitions 1) “Conservation easements” means conservation easements that have a charitable donation component. This includes full donation and bargain sale conservation easements. Section 5. A-1 Qualifications for Certification to Hold Conservation Easements 1) The Division may deny, refuse to renew, or revoke the certification of a conservation easement holder who fails to meet any of the following minimum qualifications:

1. a) Organization
   1. i) The conservation easement holder:
      1. (1) Meets the qualifications under section 170(h) of the federal “Internal Revenue Code of 1986,” as amended, and section 38-30.5-104 (2), C.R.S., to hold a conservation easement for which a state tax credit is claimed;
      2. (2) Has a sufficient number of board members, staff, and/or volunteers to accomplish the work of the organization;
      3. (3) Has a sufficient number of board meetings per year to accomplish the work of the organization; and (4) Is in good standing with the Colorado Secretary of State.
2. b) Process: Conservation Easement Selection, Review and Approval
   1. i) The conservation easement holder has and follows reasonable policies and procedures for selecting conservation easements. These include, but are not
      1. (1) Establishing and following selection criteria to identify conservation easements with a conservation purpose as defined by Section 170(h)(4)
         1. (A) of the federal “Internal Revenue Code of 1986,” as amended, and Treasury Regulations section 1.170A-14;
      2. (2) Identifying and documenting the conservation values and the public benefits from protecting those values prior to accepting the conservation easement;
      3. (3) Working with the conservation easement donor to identify and design the allowable uses, reserved rights, and prohibited uses for the conservation easement on an individual basis; and (4) Receiving and reviewing a baseline documentation report for the conservation easement before accepting the donation, and updating the report as needed. The baseline report documents the conservation values and condition of the property.
   2. ii) The conservation easement holder has and follows reasonable policies and procedures for reviewing conservation easements. These include, but are not
      1. (1) Performing proper due diligence on the title, water and mineral rights on the property before approving the transaction;
      2. (2) Ensuring any liens or encumbrances are correctly subordinated or addressed in a manner so that the conservation rights set forth in the agreement will be ensured in perpetuity.
      3. (3) Having and following a policy that each conservation easement of a phased project has a independent conservation purpose as defined by Section 170(h)(4)(A) of the federal “Internal Revenue Code of 1986,” as amended, and Treasury Regulations section 1.170A-14;
      4. (4) Obtaining a legal review of the transaction appropriate to the complexity of the transaction;
      5. (5) Using appropriate scientific expertise to substantiate the conservation values; and (6) Receiving and adequately reviewing a copy of the appraisal that was used to determine the fair market value of the property for Form 8283.
   3. iii) The conservation easement holder has and follows reasonable policies and procedures for approving conservation easements. These include, but are not
      1. (1) Declining projects that do not have conservation value or appear to be fraudulent;
      2. (2) Having the board approve all charitable conservation easement donations, or establishing policies delegating the authority to approve transactions to a qualified committee or other designee;
      3. (3) Providing sufficient information to the board, a qualified committee or other designee for review before a charitable conservation easement donation is approved; and (4) Advising potential conservation easement donors that the organization does not guarantee the qualification of the conservation easement for tax credit purposes, and that they should seek their own legal, financial and tax advice.
3. c) Stewardship: Practices and Capacity
   1. i) The conservation easement holder has and follows reasonable policies and procedures to ensure the short- and long-term management of its conservation easements. These include, but are not limited to:
      1. (1) Having adequate resources and policies in place to provide annual monitoring of each conservation easement held in Colorado, except for any conservation easement granted to a local government that did not involve a charitable donation.
      2. (2) Monitoring all conservation easements on an annual basis, including visually inspecting the property and performing other types of monitoring actions as appropriate;
      3. (3) Monitoring is performed and documented by a qualified individual, and reviewed by the board, a qualified committee or other designee;
      4. (4) Enforcing every conservation easement agreement, and properly addressing violations in a manner appropriate to the scale of the violation;
      5. (5) Amendments made to a conservation easement agreement do not result in a net loss of conservation value and do not create a private benefit to the donor; and (6) Preserving original and duplicate copies of necessary and important records, such as agreements, baseline reports, and appraisals, in a safe and secure manner.
   2. ii) The conservation easement holder has the necessary personnel and financial capacity and policies and procedures to ensure the short- and long-term management of its conservation easements. These may include, but are not
      1. (1) Establishing lasting dedicated stewardship and enforcement funds for the management and enforcement of every conservation easement held;
      2. (2) Only using the dedicated stewardship and enforcement funds for stewardship- and enforcement-related purposes, or other allowable uses established through written policies;
      3. (3) Determining the approximate amount of stewardship and enforcement funds that will be needed for the short- and long-term management of all conservation easements that have a donation component; and (4) Collecting the stewardship and enforcement funds needed with all conservation easements that have a donation component, or collecting the required funds through other means, such as fundraising.
4. d) Finance
   1. i) The conservation easement holder has and follows reasonable fiscal policies and procedures to ensure the transparent and responsible management of its assets. These may include, but are not limited to:
      1. (1) Having the board review and/or regularly discuss the organization’s financial status, including the annual budget and any financial changes that have occurred; and (2) Having a qualified individual conduct a reasonable financial audit or other financial review on an annual basis.
5. e) Governance
   1. i) The conservation easement holder demonstrates it has and follows reasonable policies and procedures to ensure the responsible management of conflicts of interest and any transactions with insiders.

Section 6. Enforcement Conservation easement holders who violate this rule shall be subject to disciplinary action pursuant to the Division of Real Estate's authority set forth in section 12-61-720 (11), C.R.S. Disciplinary actions include, but are not limited to:

1. a) Revocation of certification;
2. b) Refusal to renew certification;
3. c) Denial of an application for certification; and d) Fines.

Section 7. Effective Date This permanent rule is effective July 1, 2009.

A-2 EXPIRATION DATE FOR CERTIFICATION Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Division of Real Estate (the “Division” ) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules Section 4. A-2 Expiration Date for Certification The Division of Real Estate adopts the following permanent rule entitled, A-2 Expiration Date for Certification , according to the authority found in section 12-61-720 (11) C.R.S. Pursuant to section 12-61-720 (11), C.R.S., the Division shall have the authority to promulgate rules for the conservation easement certification program. The specific purpose of this rule is to define a time when annual certification for a conservation easement holder will expire. This rule applies to any nonprofit entity and any government entity that hold conservation easements for Section 4. A-2 Expiration Date for Certification Certification for a conservation easement holder expires on December 31 following the date of issuance. A-3 ELIGIBILITY FOR CONSERVATION EASEMENT HOLDERS AFTER REVOCATION Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Division of Real Estate (the “Division” ) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules Section 4. A-3 Eligibility for Conservation Easement Holders after Revocation The Division of Real Estate adopts the following permanent rule entitled, A-3 Eligibility for Conservation Easement Holders after Revocation , according to the authority found in section 12-61- 720 (11) C.R.S.

Pursuant to section 12-61-720 (11), C.R.S., the Division shall have the authority to promulgate rules for the conservation easement certification program. The specific purpose of this rule is to define a time when a conservation easement holder may reapply for certification after revocation of their original certification by the Division.

This rule applies to any nonprofit entity and any government entity that hold conservation easements for Section 4. A-3 Eligibility for Conservation Easement Holders after Revocation Any conservation easement holder whose certification to hold a conservation easement is revoked is rendered ineligible to apply again for certification until more than two years have elapsed from the date of revocation of the certification. Any re-application after such two-year period shall be required to be submitted on a new application.

A-4 CERTIFICATION RENEWAL Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Division of Real Estate (the “Division” ) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules Section 4. A-4 Certification Renewal The Division of Real Estate adopts the following permanent rule entitled, A-4 Certification Renewal , according to the authority found in section 12-61-720 (11) C.R.S. Pursuant to section 12-61-720 (11), C.R.S., the Division shall have the authority to promulgate rules for the conservation easement certification program. The specific purpose of this rule is to define a time when and how a conservation easement holder may renew their certification. This rule applies to any nonprofit entity and any government entity that hold conservation easements for Section 4. A-4 Certification Renewal Renewal of a conservation easement holder certification can be executed only with the renewal application provided by the Division, submitted and accompanied by the proper fee by December 31st of each year.

A-5 REINSTATEMENT OF CERTIFICATION Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Division of Real Estate (the “Division” ) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules Section 4. A-5 Reinstatement of Certification The Division of Real Estate adopts the following permanent rule entitled, A-5 Reinstatement of Certification, according to the authority found in section 12-61-720 (11) C.R.S. Pursuant to section 12-61-720 (11), C.R.S., the Division shall have the authority to promulgate rules for the conservation easement certification program. The specific purpose of this rule is to define a time when and how a conservation easement holder may reinstate their certification should their certification expire. This rule applies to any nonprofit entity and any government entity that hold conservation easements for Section 4. A-5 Reinstatement of Certification A certification that has expired may be reinstated within one year after the date of expiration if a proper renewal application and renewal fee is submitted to the Division of Real Estate and if the applicant meets all other requirements of section 12-61-720, C.R.S. and any rules promulgated by the Division. Certification is effective on the date of issuance or reinstatement and cannot be applied retroactively. Any certification that has been expired greater than one year may not be reinstated. C-1 RULES REGARDING SUBMISSION OF A CLAIM FOR A TAX CREDIT CERTIFICATE Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Department of Regulatory Agencies and the Division of Real Estate to promulgate rules, or to amend, repeal or repeal and re-enact the present rules related to conservation easements. Section 4. Rules Regarding Submission of a Claim for a Tax Credit Certificate The Division adopts the following permanent rule entitled, Rules Regarding Submission of a Claim for a Tax Credit Certificate, according to the authority found in section 12-61-722, C.R.S. The purpose of this rule is to effectuate the legislative directive to promulgate necessary and appropriate rules in conformity with the Colorado Revised Statute concerning the state income tax credit that may be claimed for a conservation easement donation.

The specific purpose of this rule is to define the requirements and procedures to submit a claim to the Division of Real Estate in order to receive a tax credit certificate pursuant to section 39-22-522 (2.5), C.R.S. and section 12-61-722, C.R.S.

This permanent rule is applicable to a taxpayer conveying a conservation easement donation in 2011, 2012, and 2013 and claiming a tax credit pursuant to section 39-22-522, C.R.S. Section 4. Rules Regarding Submission of a Claim for a Tax Credit Certificate 1. A valid Deed of Conservation Easement must be recorded before a claim can be submitted and a tax credit certificate issued.

2. A claim for a tax credit certificate must include the following:

1. a. a signed and completed form entitled: “Application for a Conservation Easement Tax Credit Certificate,” approved by the Division of Real Estate;
2. b. a signed and completed form entitled: “Affidavit for Conservation Easement Appraisals,” approved by the Colorado Board of Real Estate Appraisers; and c. a copy of the Recorded Deed of Conservation Easement.

3. A taxpayer who submits a claim for a tax credit certificate to the Division of Real Estate shall pay the Division a fee as prescribed by the Division.

4. An alternative document may be substituted for the copy of the recorded Deed of Conservation Easement as evidence a conservation easement was conveyed. The alternative document must originate from the county or counties in which the conservation easement was recorded and disclose the following:

1. a. the reception number;
2. b. a description of the property;
3. c. the date and time which the easement was recorded; and d. the name of the grantor and grantee.

5. A claim for a tax credit certificate is deemed received by the Division of Real Estate for purposes of section 39-22-522 (2.5), C.R.S. when the application and all other required documents are signed and initialed, properly filled out, and date-stamped by the Division of Real Estate upon receipt. The Division of Real Estate is not responsible for any claims not received. Only after the claim is deemed to be received will the claim be applied towards the twenty-six million dollar limit for the applicable year.

6. The taxpayer must sign, understand, and adhere to all disclosures listed in part three of the form entitled: “Application for a Conservation Easement Tax Credit Certificate,” in the form approved by the Division of Real Estate at the time the claim is made.

7. After the tax credit certificate has been issued, the Department of Revenue has the authority to determine if the conservation easement tax credit does not comply with statutory and regulatory requirements. The Division of Real Estate is not responsible should the Department of Revenue determine a conservation easement tax credit does not comply with statutory and regulatory requirements.

8. A claim for a tax credit certificate is ineligible to receive a tax credit certificate and shall not be applied towards the twenty-six million dollar limit for the applicable year if it is based on a conservation easement donation where:

1. a. The appraiser associated with the claim does not hold a valid license as a certified general appraiser or fails to meet all of the education and experience requirements established in accordance with section 12-61-719 (7), C.R.S.; or b. The conservation easement holder is not certified by the Division of Real Estate at the time of the donation or fails to comply with section 24-33-112, C.R.S.

9. A tax credit certificate may not be used to claim an income tax credit with the Department of Revenue prior to the year for which the tax credit certificate is issued by the Division of Real Estate.

10. If more than one claim is submitted to the Division of Real Estate on the same day, the tax credit certificates with respect to those claims will be issued in the order that conservation easement donations were first recorded with the appropriate county or counties.

11. In the event a portion of a claim does not qualify under the aggregate limit of twenty-six million dollars for 2011 or 2012, a second certificate will be issued for the remaining tax credit amount for the subsequent year.

12. In the event a tax credit certificate has been issued for a conservation easement donation and the donation value increases pursuant to a revised appraisal, the taxpayer may submit a second claim to the Division of Real Estate for the increased amount. A second claim must be submitted to the Division of Real Estate in accordance with this rule and will be assigned a tax credit certificate in the order received among all other claims submitted to the Division of Real Estate. A second tax credit certificate for a second claim may be issued for a different year.

13. The Division of Real Estate may consult with the taxpayer, a taxpayer’s authorized representative, the conservation easement holder, appraiser, the Conservation Easement Oversight Commission and the Department of Revenue regarding a claim for a tax credit certificate. _____________________________________________________ Editor’s Notes History Entire Rule eff. 07/01/2009.

Rule B-1 emer. rule eff. 01/25/2010.

Rule B-1 emer. rule eff. 04/25/2010; expired 08/21/2010. Rules A-2, A-3, A-4,A-5 eff. 07/15/2010.

Rule C-1 eff. 12/30/2010.