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New In-Lieu Fee Program for Wetland Compensatory Mitigation

by Tina Myers 10. December 2014 04:25

The WDNR made an announcement on Friday, November 21 that a new in-lieu fee program for wetland mitigation, also referred to as The Wisconsin Wetland Conservation Trust (WWCT), is now in effect and can be used as a type of compensatory mitigation for impacts to wetlands. The WDNR has been working on the creation of this new program for the last couple of years and the Final Instrument was finally signed by the U.S. Army Corps of Engineers and Interagency Review Team Compensatory, which legally establishes the program. 

Per the WDNR, this new in-lieu fee program “involves the restoration, establishment, enhancement and/or preservation of aquatic resources through funds paid to a government or non-profit natural resources management entity to satisfy compensatory mitigation requirements for permits. An in-lieu fee program sells credits to permittees whose legal obligation to provide compensatory mitigation is then transferred to the sponsor of the in-lieu fee program upon receipt of an associated credit fee.”

Under WI Act 118, mitigation became a requirement back in March 2012 for unavoidable adverse impacts approved under an Individual Permit (IP). This is typically required for impacts to wetlands 10,000 square feet or greater, but can also be required under certain circumstances when impacts are less than 10,000 square feet. Prior to the in-lieu fee program, applicants only had two choices for wetland compensatory mitigation: purchasing credits from privately owned wetland mitigation banks or permittee-responsible mitigation. 

The WDNR has indicated that the mitigation banking will still be preferred over the in-lieu fee option, but when mitigation bank credits are sparse or non-existent, the in-lieu fee option will be available as the next preferred option to receive credit purchases.

If you have any questions related to wetland mitigation, wetlands permitting, or wetland delineations, please contact one of RASN’s professional wetland ecologists: Tina Myers at (262) 317-3389 or Heather Patti at (262) 317-3361.

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“Why Do I Need a Survey?”

by Steve Southwell 4. December 2014 11:20

“Why do I need a survey? This is a question that real estate attorneys often hear from their clients. The answer is that there are many reasons.

  • Legal descriptions that do not work mathematically.
  • Field monumentation that does not agree with the required legal description.
  • Flood plains, wetlands and other environmental issues that affect the use and value of a property.
  • Encroachments of improvements across the property boundary lines.
  • Easements that restrict where buildings and other improvements can be built.
  • Legal access from the property to a public street.

For these reasons and many others, attorneys know that a current land survey is an important part of the due diligence process in acquiring real estate. The items revealed on the survey may require resolution prior to the acquisition or the deal may fall through completely.

In presentations given to law firms, one of the standard examples of why a survey is needed is the million dollar manhole. A company purchased a large parcel and had big plans to improve it. Sometime after the sale, it was discovered that a large municipal sewer line ran through this property. Usually, an easement is recorded that then shows up in a title search as an exception to title. When the easement is plotted on a survey, it is easy to see where it is and how it affects the property. Unfortunately, no easement was recorded. A survey was prepared for this property. The easement was not shown on the survey because the title commitment did not list it in the exceptions.

So the buyer then sought a million dollars in damages for not being made aware of this problem prior to the purchase. The title company was off the hook because the easement was never recorded. However, the surveyor omitted showing the manhole on the survey. The field crew missed it during the data collection process. Since the surveyor is obligated to show all improvements and also all visible signs of a possible easement, they were held liable. It was an honest mistake, but the buyer ended up being compensated partly due to the fact that a survey was done. This example also illustrates how it is important for a survey firm that is chosen to perform the survey and have the insurance and resources necessary to cover a mistake.

We now have a newer example of an even larger loss. A waterfront home in Rhode Island was built on the wrong Lot. The $1.8 million house was built by a developer. Apparently, he was able to draw permits and construct the home without ever having a licensed surveyor involved. The developer went to sell the home in 2011. The buyer had a survey done and the error was discovered. The home was built on a public park. The land could not be sold to the developer due to deed restrictions. The developer lost every appeal including the Rhode Island Supreme Court. Now the house has to be removed.

A survey can be expensive, but the cost of not doing one can be far greater. Most of the time, no big problems are discovered on a survey, but as these examples illustrate, a loss can be huge.

The same guy that asks the attorney; “Why do I need a survey?” will be the same guy that asks “Why didn’t you protect me by ordering a survey?”

A survey can protect a buyer from many problems. When the new owner wants to sell or refinance, the survey is very valuable. It is usually not expensive to update it in the future. Selecting a survey firm that is stable, has a good reputation and will be around in the future adds value to the survey as well.              





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