Costs to resolve disputes about water rights surpassed topography and vegetation cutting. Water rights covered claim numbers are small compared to topography and vegetation cutting which remain the most frequent covered claim types followed closely by land division, boundary disputes and neighbor access demands. But they are very expensive. Covered claims currently run on average from $40,000 per claim for the most frequent types to $20,000 for others. The $5,000 deductible and staff time are additional costs.

What can stewardship folks do to mitigate these risks?

• Violation documentation: Understanding what thorough and complete violation documentation is so that it withstands disputes is essential. This entails a photo, description and map of every single tree cut, of every inch of a linear violation, every rut and water erosion pool or stream, every side of a structure or improvement and the full extent and dimensions of grading or other topography change. This is not an exhaustive list but should be enough to guide violation documentation. If a land trust feels a violation is resolved then land trusts need to show their work and their conclusions. Document how the resolution is consistent with the conservation values and will not result in impermissible private benefit. See Practice Element 11E. Additional resource: Alliance webinar "Advanced Risk Management: Great Land Trust Case Study"

• Rights of way: Demands for legal access are increasing quickly. A methodical investigation of the legitimacy of the demand, litigation risk, avoiding impermissible private benefit, alternative routes and minimizing any unavoidable intrusion are essential. Amendments to existing conservation easements to permit a new right of way outside of building areas may be contrary to conservation purposes and may be too high risk to undertake. Use the 2017 edition of the Amendment Report to assess any such requests for existing conservation easements including full due diligence. For Preserves, the Amendment Report is also the best guide for evaluation and due diligence. It is also critical to consult with an attorney, preferably a real estate trial attorney who is not on your board, so that you understand fully the laws in your state regarding prescriptive easements, implied easements by necessity, adverse possession, declaratory judgement to establish easement and quiet title. Additional resources: past TerraBites discussing access and right of ways.

• Approvals: Limit any approval to the specifics of the request. Do not give broad approval to a narrow request. Use specific criteria, conditions and limitations. Be certain to specify in every approval the criteria and limits on scope and scale for the exact use, its time duration, eliminate impermissible private benefit, size, extent, numbers of cars, people, structures, ancillary improvements like roads and utilities, eliminate preferential treatment for insiders, address vegetation removal and topography changes, identify the type of approval and if it is discretionary use the Amendment Report as guidance. Be sure that you know what the precise nature of the request is, and if necessary, ask for it in writing with whatever supporting documentation. may help in understanding what you are being asked to do. Gather facts to understand the request/violation as fully as possible. Additional resources: (1) Sample for Practice 11F: Reserved Right Approval Procedures (2) Practical Pointer: Drafting Approval Standards in Conservation Easements

• Water rights: Stewardship of water rights requires complete and consistent documentation to protect the conserved water ownership. Water rights are often tracked in a separate registry. This requires two searches. It is prudent to update title of both land and water (and minerals) annually. That is not a Standards requirement but a lesson learned from numerous division challenges including water severance. The two other examples reflect on careful drafting in concert with stewardship staff and point to a thorough understanding of water law in your state. Additional resource: Alliance webinar “Is Your Land Trust Ready to Protect Water?”

• Boundaries: Monitor every boundary every year (unless the steepness of topography or size of parcel necessitates a rotating schedule) and identify and resolve every encroachment, trespass or possible issue. Land Trust Standards and Practices specifies that you be able to ascertain and enforce all property boundaries. Check land records annually if at all possible. If cost or time is prohibitive, then check all available online records or tax assessors, realtors, auctioneers, land records if available, newspaper notices, transfer tax database, zoning records and probate records including death and divorce. Ask landowners at t he annual visit if they have given any deed, easement or signed any agreement of any type that divides, affects or gives rights in the conserved land. See Practice Elements 9D, 9F, 9G, 11B, 11C, 11D, 11E, 12B and 12C. Additional resources: past TerraBites discussing division. 

• Drafting: Work with acquisitions to ensure that they address all of the basic drafting points outlined in the Practical Pointer: Drafting Pointers for Risk Balancing in Conservation.

We’re here to help! If you have any questions, please let us know.

Thanks,

Tom Kester

Operations Manager and Secretary

Alliance Risk Management Services LLC

Manager for Terrafirma Risk Retention Group LLC