The Department of Interior issued new guidance on December 23, 2019 that prioritizes mapping of all pre-1976 U.S. Fish and Wildlife Service (“FWS”) waterfowl production area easements. FWS acquired thousands of these easements in the 1960s and 70s across the prairie pothole region, which includes North Dakota, South, Dakota, western Minnesota, and northwest Iowa. FWS easements were popular then because landowners received money for land they could not farm. FWS easements are perpetual, and FWS maintains rights to restrict certain land practices even when the land changes hands.
FWS waterfowl production area easements legally describe the whole parcel of land as subject to the easement. Courts have held, however, that FWS only purchased the right to prohibit the draining, filling and burning of wetland areas on the property at the time the easement was conveyed. The non-wetland areas of the property are not subject to the easement’s restrictions.
FWS easements created prior to 1976 do not have a contemporaneous agreed-upon map between FWS and the landowner that entered into the easement showing areas on the property that the parties understood were protected by the easement. The lack of maps for pre-1976 easements has caused confusion and disagreement between FWS and landowners over the years as to the location and boundaries of areas on the property that are protected.
The Department of Interior issued new mapping guidance on December 23, 2019 in hope to create a more structured process of determining the location and boundaries of protected areas on pre-1976 FWS easements. The guidance requires FWS to map pre-1976 easements in a new format overlaid on a high-quality aerial image. The new maps must list the individual acreage of each wetland area FWS believes is protected by the easement too.
The guidance also creates the right to appeal the new map if the landowner disagrees with FWS’s determination of the location and boundaries of protected wetland areas. To start the appeal process, landowners must contact their local Refuge Manager with objections to FWS’s map within 40 days of receiving the new map from FWS. We recommend this contact be made in writing and that technical evidence in support of your position be submitted with the objections.
Rinke Noonan has multiple attorneys with experience in addressing objections to FWS maps. We also frequently work with technical consultants during the appeals process who have expertise in identifying and delineating wetlands. There are additional appeal steps that can be taken if the landowner and Refuge Manager cannot agree on a revised map. Maps not appealed are likely to be considered final by the agency, so it is strongly advised that landowners appeal the new map if they disagree about the location and boundaries of any wetland areas mapped by FWS.
Please contact us if you have questions about FWS easements or about any letters or maps you have received from FWS.