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FISH AND WILDLIFE SERVICE |
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DIRECTOR’S ORDER NO. 164
Subject: Migratory Bird Conservation Fund - Minimally Restrictive Conservation Easement Acquisition Policy
Sec. 1 What is the purpose of this Order? This Order provides land acquisition policy that authorizes the use of administratively determined payments for the acquisition of minimally restrictive wetland and grassland easements in support of areas designated as ''Waterfowl Production Areas.” This Order further describes the process for delineating biologically significant wetlands and grasslands, and identifies the methodology for ascertaining the appropriate amount of just compensation for the rights acquired by the United States.
Sec. 2 Does this Order supersede another directive? This Order supersedes Director's Order 164, January 27, 2004.
Sec. 3 What is the authority for this policy? The authority for this policy is found in the Migratory Bird Hunting and Conservation Stamp Act of 1934 (16 U.S.C. 718-718j), as amended by the passage of Public Law 85-585 on August 1, 1958. This policy utilizes the Secretary’s legislated authority for all matters pertaining to the Small Wetlands Acquisition Program under the 1958 amendment to the Migratory Bird Hunting and Conservation Stamp Act, commonly referred to as the “Duck Stamp Act.” The 1958 amendment allows the Secretary broad discretion to determine how property rights are acquired. The language in the amendment sets forth the requirement to acquire small prairie potholes and interest therein, but is silent on the specific land acquisition details.
Sec. 4 What is a Waterfowl Production Area? A Waterfowl Production Area is any wetland or pothole area acquired pursuant to section 4(c) of the amended Migratory Bird Hunting and Conservation Stamp Act, owned or controlled by the United States, and administered by the Service as a part of the National Wildlife Refuge System.
Sec. 5 How are Waterfowl Production Areas delineated? The Wetlands District Manager is responsible for the biological determination of the type and amount of wetland and grassland acres to be acquired in the Small Wetlands Acquisition Program (SWAP). We delineate wetlands and grasslands using the criteria set forth in the U.S. Fish and Wildlife Service, Strategic Growth of the Small Wetland Acquisition Program, Guidelines for Fee and Easement Purchase (Region 3), and the U.S. Fish and Wildlife Service Grassland Easement Evaluation Worksheet (Region 6). We incorporate these evaluation criteria and make them a part of this Order by reference. The Wetland Manager is responsible for preparation and approval of the appropriate delineation diagram with each acquisition proposal. The delineation diagram clearly defines the amount and location of wetlands and grasslands that we are to acquire.
Sec. 6 What
does this policy impact? We will use
administratively determined payments, as authorized by this policy, in
lieu of
an appraisal. This policy impacts: a.
Our
ability to acquire and protect critical migratory waterfowl breeding
habitat as
Waterfowl Production Areas (WPA) in the Prairie Pothole Region of the
northern
Great Plains. The Prairie Pothole Region, located in eastern
South
Dakota,
eastern and northern North Dakota, northeastern Montana, western
Minnesota, and north central Iowa, is one of the most important areas
for duck reproduction
in North America. The Region produces, on average, 50 to 75
percent of
the
primary species of ducks on the continent. Twelve of the 34
species of
North
American ducks are common breeders in the region. For seven
species–mallard,
gadwall, blue-winged teal, northern shoveler, northern pintail,
redhead, and
canvasback–the Prairie Pothole Region accounts for more than 60 percent
of the
breeding population. The Region is also a major migration
corridor
during fall
and spring for ducks, geese, and other water birds. b.
Our ability
to purchase wetland and grassland easements surrounding temporary and
seasonal
wetland basins of breeding pair habitat that support the WPA key brood
marshes. c. The amount of consideration that we offer to private landowners in exchange for the transfer of property rights that are acquired with minimally restrictive wetland and grassland easements.
d. All counties authorized for WPA acquisition.
e.
The
easement payment determination for all WPA delineated lands and waters,
regardless of their current use or their potential highest and best use. f. The documentation reporting requirements for the determination of easement payments on all minimally restrictive conservation easements in Minnesota, North Dakota, South Dakota, Montana, and Iowa.
Sec. 7 Why does the Service need this policy? We will use administratively determined payments, as authorized by this policy, in lieu of an appraisal. The acquisition of minimally restrictive wetland and grassland easements provides significant conservation benefits, but it has little or no impact on property values. This policy:
a. Meets critical conservation mandates as set forth in the Duck Stamp Act. The Duck Stamp Act authorizes the acquisition of lands and waters, interests therein, and rights-of-way to provide access to the WPA.
b. Provides a simple methodology for determining payments for minimally restrictive wetland and grassland easements in the Prairie Pothole Region of the United States.
Sec. 8 What types of easements does this policy cover? This policy pertains to the acquisition of minimally restrictive wetland easements, grassland easements, and habitat easements. This policy does not address restrictive habitat easements or fee acquisitions. The following provides a brief synopsis of the wetland and grassland legal instruments:
a. Wetland Easements. Permanent conservation
easements that protect wetlands include: (1) Palustrine wetlands
with water
regimes A through U; (2) Lacustrine littoral wetlands; (3) Lacustrine
limnetic
wetlands with association numbers 1 and 2. Such wetlands may be
natural, fully
restored, or capable of being restored. The Wetland Manager
delineates size of
the wetland area. These easements utilize wetland easement
conveyance
documents that restrict the right to ditch, drain, level, fill, and
burn the
land, and secure the right of ingress and egress by authorized
representatives
of the United States and the right of access in order to build and
maintain
water control structures. Regions 3 and 6 utilize wetland
easements. The
landowner retains control of public access. b. Grassland Easements. Permanent conservation easements that protect and conserve waterfowl production habitat include: sensitive groundwater areas, riparian lands, wetland restoration areas, marginal agricultural cropland areas, pastured hillsides, and woodlots on agricultural land. We may use the land for haying and/or grazing depending on the type of easement instrument. The Wetland Manager delineates the size of the grassland area. The grassland easements acquire the right to maintain the land, the right of ingress and egress by authorized representatives of the United States, the right to maintain permanent vegetative cover and restrict the alteration of grasslands and wildlife habitat, and the right to restrict haying, mowing, or seed harvesting until after July 15 of each calendar year. The easements included are the habitat easements used by Region 3 and the grassland easement used by Region 6. Hereinafter, we collectively refer to grassland and habitat easements as grassland easements. The landowner retains control of public access.
Sec. 9 What is the current valuation process that this policy replaces?
a.
Since
1971, the Uniform Appraisal Standards for Federal Land Acquisitions
(UAS) have
provided the guidance and appraisal methodology for nearly all Federal
land
acquisitions. Since 1987, the Uniform Standards for Professional
Appraisal
Practice (USPAP) have become the required standards used by all
licensed
appraisers. We can use the UAS and the USPAP in the payment
determination of
minimally restrictive wetland and grassland easements. However,
since minimally
restrictive easements acquire very few property rights, appraisals
prepared
under the auspices of the UAS and the USPAP typically indicate little
or no
impact on property values and, therefore, little or no value for the
placement
of a minimally restrictive easement on the property. b. Since the inception of the SWAP, it has been apparent that the acquisition of minimally restrictive wetland easements has little impact on property rights. To meet the legislative mandate to acquire lands and waters for the protection of wetlands in WPAs, the Service currently utilizes a direct percentage of the fee unit value of the property to be encumbered by the wetland easement in order to determine the easement payment. This method is commonly referred to as the administrative formula.
c. Under the current payment determination, the Division of Realty performs the following steps to determine a wetland easement payment. This policy replaces the estimate of value as determined through the appraisal process with a figure known as the adjusted assessed land value (AALV) of record.
(1) Prepares, reviews, and approves the conventional appraisal;
(2) Extracts the unit value (dollars per acre) from the approved appraisal.
(3) Multiplies the unit value by a 50-90 percent factor depending upon the State and the amount of the unit value.
(4) Multiplies the result of the previous step
by the number of wetland acres to be acquired that results in the final
wetland
easement payment. d. The administratively determined payment for wetland easements ranges between $2,500 and $20,000 and can sometimes reach as high as $50,000 per acquisition. In most common easement cases, the cost to prepare and approve a UAS/USPAP compliant appraisal will exceed the final easement payment. This policy sets forth a streamlined payment determination based upon the AALV.
Sec. 10 What is the adjusted assessed land value?
a. Counties must, by law, maintain property value assessments at, or near, 100 percent of "full and true" value. However, the "full and true" value does not usually follow market values. Because of the high correlation between land sales price and assessed value of land sales, we can measure the gap between assessed value and market value using standard statistical analysis. A comparison of the two values produces a reliable multiplier. When this multiplier is taken times the assessed value, we can replicate a consistent and fairly reliable estimate of "market value"–this computed estimate of market value is the AALV. All of the information needed for computation (sales prices and assessed values) is easily obtainable from county assessor offices. For example, the assessed land value for a property may have a unit value of $600 per acre. The multiplier for the county may be 1.4. The computed AALV will result in a unit "market value" of $840. The AALV will provide consistency throughout the entire SWAP while ensuring that payments to landowners are fair and equitable.
b.
This
policy uses a normalized figure known as the AALV. We will use
AALV consistently
throughout the SWAP. An analysis of land sales indicates that
assessed values
of record can represent "market value" by establishing a multiplier
through studies in a defined market area. For the purposes of
this policy, and
to ensure consistency and uniformity, a defined market area will
usually match
the area covered by the assessing entity. For the Prairie Pothole
Region, the
defined market area is usually at the county level. The land
sales that we use
to determine the multiplier will include similar land types (both
economic use
and geographic and physical aspects) as the encumbered lands. The
majority of
land sales will include agricultural and pasture land sales. We
will always
exclude inappropriate properties that could distort the multiplier
(e.g.,
residential, rural residential, and commercial). We will also
exclude properties
that indicate anomalies in the market
(sales that are
not arm’s length transactions). We will compare properties
exhibiting assessment
anomalies with the assessments of other properties in the market
area. We define
an assessment anomaly as a subject property having an assessed unit
value that
we find to be significantly lower than the assessed unit values of the
surrounding properties. In such cases, we will substitute the
lowest assessed
unit value used in the market analysis for establishing the multiplier
for the
purpose of determining the easement payment. Sec. 11 How are easement payments determined? The easement payments for both wetlands and grasslands utilize the AALV unit value for the subject property. Use the following indices in conjunction with the AALV on the wetland and grassland easements. The wetland indices contain the percentages that the Service has historically used. The grassland indices contain percentages that we determined from historical grassland easement payments compared to unencumbered grassland fee value. Both indices recognize and support an acceptable landowner acceptance rate of 45 to 65 percent. While based upon historical sign-up rates and payments, the indices indicate that the payment rates are acceptable to private landowners based upon the encumbrance imposed by the respective easement. As set forth in paragraph 13 of this Order, Regions 3 and 6 will submit their annual acceptance rate as part of the annual reporting requirements. In addition, the Regions will make the necessary recommendations for adjusting the indices if the acceptance rate exceeds 70 percent or drops below 40 percent.
a. Wetland Easements. We will base payment rates for wetland easements upon the AALV and the wetland index (WI) contained in the following table. Wetland areas include all delineated wetlands regardless of cropping history. This includes Conservation Reserve Program lands and temporary wetlands that are currently being farmed.
Wetland Easement Payment = AALV * WI * Number of Wetland Acres
WETLANDS EASEMENT INDEX
b. Grassland Easements – We will base payment rates for grassland easements upon the AALV and the grassland index (GI) contained in the following table:
GRASSLAND EASEMENT INDEX
Grassland Easement Payment = AALV * GI * Number of Grassland Acres
Sec. 12 What is the easement payment preparation and process? The Director authorizes the Regional Directors for Regions 3 and 6 to perform the following with regard to the easement payments:
a.
Document
the methodology and analysis used in computing the multipliers for use
in
determining the AALV. b.
Approve
the county and subcounty multipliers. c.
Approve
the computation of the easement payments using the county/subcounty
multipliers
and the indices in paragraph 11. d.
Maintain
records of ownership and sale information as well as property
characteristics
and corresponding assessed values of record. Compile sales and
assessor
information into sales data binders and keep the resulting multipliers
current and
available for inspection. We consider these documents a permanent
record of the
respective Regional Realty Offices and subject to review and evaluation. e. Certify each easement payment calculation prior to signing the Statement of Just Compensation. The respective Regional Director may redelegate the certification of the easement payment calculation and the Statement of Just Compensation.
Sec. 13 What are the management controls, review, and reporting requirements? Regional Directors, Region 3 and Region 6 are responsible for jointly reviewing the payment schedule on an annual basis. The Regional Directors will submit an annual report (RCS FWS-04-0001-AN) to the Washington Office that indicates the extent of program activity in the SWAP with a full and complete analysis and assessment of payment methodology and level of landowner acceptance rates. The assessment will indicate to the Headquarters Office the overall validity and whether the easement indices require revision. The Regional Directors will submit the report, together with necessary recommendations and adjustments, to the Director for review and approval by October 31 of each fiscal year.
Sec. 14 When is this Order effective? This Order is effective immediately. We will include the contents of this Order in Part 340 of the Fish and Wildlife Service Manual. This Order will expire on June 30, 2006, unless amended, superseded or rescinded.
/sgd/ MATT HOGAN ACTING DIRECTOR Date: April 8, 2005 |
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For specific information on the contents of this Director's Order, contact the Division of Realty. For additional information regarding the Directives web pages, contact Krista Holloway , in the Division of Policy and Directives Management, 703-358-2482.
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