Turns out, if you have land next to a property with a conservation easement (CE), you may also be restricted by the CE terms. In May of 2024, Biden’s U.S. Fish and Wildlife Service (FWS) finalized a rule known as the National Wildlife Refuge System; Drain Tile Setbacks, which gives the FWS a way to control neighboring land.
This new rule created regulations pertaining to wetland easements (conservation easements). Specifically, FWS said: if landowners fully comply with Service-provided setbacks when installing drain tile and do not later replace or modify the drain tile, the Service grants the landowners a ‘safe harbor’ from legal action in the event that the setback drain tile nevertheless results in the draining of an easement wetland.”
The rule pertains to what is known as the Prairie Pothole Region (PPR) of Iowa, Minnesota, Montana, North Dakota, and South Dakota spanning some 150,000 square miles – over 96 million private acres.
Tile drainage is where pipes are installed underground to collect water in the soil and dissipate it to larger bodies of water and ultimately the water table. They help keep the moisture content in the soil at consistent levels to help crops grow more efficiently and prevent the soil from being oversaturated.
According to the Pacific Legal Foundation (PLF), the nonprofit organization behind several significant property rights cases, the FWS has “dramatically expanded its control over land, with these conservation easements far beyond what was contemplated when they were created.”
On February 24th, PLF filed a lawsuit against the FWS et al on behalf of Ellingson Drainage, Inc., a third generation, family-owned company that provides subsurface drainage systems (drain tile) to improve productivity of farmland.
In the early 1960’s, the FWS acquired conservation easements over wetlands on farms in the Prairie Pothole regions. According to the lawsuit, prior to 1976, the easements did not describe what wetlands they covered on each property, creating considerable confusion.
In 2020, FWS issued a guidance memo to address the confusion. FWS informed landowners it would issue “estimates” of what they believed the scope of existing easements and how it would calculate where farmers could install drain tile on their encumbered land.
Then the 2024 rule was issued severely restricting farmers’ ability to install drain tiles, stating “any impact—no matter how minor—on a purported wetland is a violation of the terms of their easements.” This prevented Ellingson from installing drain tiles on farmers’ properties and he lost business.
FWS also states in their final rule: “The regulations we are adopting in this final rule provide clarity and certainty to landowners that drain tile may be installed on lands encumbered by a wetland easement provided that protected wetland areas are not drained, directly or indirectly.
North Dakota’s Agricultural Commissioner, Doug Goehring, protested during the public comment period saying the federal proposal lacked sufficient clarity for landowners and failed to specify which lands would be subject to easement requirements.
“This proposed regulation does not properly recognize nor respect private property rights, and it does not serve to foster conscientious and effective water management,” Goehring wrote, adding that it will “negatively impact North Dakota private landowners and agricultural producers.”
Ellingson, with PLF representing him, asked the court to hold the rule unlawful and set it aside because it misinterprets the scope of the easements. In fact, the lawsuit claims that the 2024 rule “goes beyond the protected wetlands” or the Service’s easement rights, and “advances an interpretation that is inconsistent with traditional norms of real property conveyance.”
Another case PLF took on dealt with the same issue for North Dakota’s Northland Township, a small town of just 56 people. Northland is a farming community that sits in the Prairie Pothole region. And it so happened to have one main road that would trap the township’s families when water flooded the downtown area.
The township spent $26,000 on rock and gravel to raise the road and prevent it from flooding, a huge sum of money to pay for a tiny town of 56 residents. FWS’s new rule also prevented Northland Township from digging ditches along roads dramatically expanding its control over land, which the conservation easements in the area never contemplated when they were created.
The effect of the 2024 Biden rule allows the conservation easements in the area to control actions that “might” affect the potholes on neighboring lands, which was never the intent. Not only neighbor’s land, but areas like the Northland Township where digging a ditch for road safety was a crime claiming their actions might affect drainage of potholes no matter how little they are affected by drainage.
Because of PLF’s representation of Northland Township, the FWS backed down without any litigation.
These two issues – Ellingson tile installer and Northland Township – show how overly abusive the federal government can be when enforcing wetland conservation easements. Their interpretation of vague language from over 60 years ago, shows how they abuse and run roughshod over millions of acres of land owned by farmers and landowners nationwide, even on adjacent private property with no easements.
See the related story by PLF re: Northland Township here.
View the PLF Lawsuit here.
View the Federal Register Notice of Final Pothole Setback Rule here.
