Just got an email from good friend and one of the best thinkers/writers on Western land and water issues, Sarah Bates. She sent me a copy of her latest report, Land Trusts and Water: Strategies and Resources for Addressing Water in Western Land Conservation. It is published by the Land Trust Alliance.
This report has real practical information. Great appendices!
Download Land Trusts and Water
Summary
Land and water are inextricably connected, and protecting one often necessitates protecting the other. Water is essential to protect natural areas, such as wetlands, riparian habitat, irrigated pastures and urban greenways—all areas of importance to western land trusts. Likewise, sound land management practices are essential to protect and enhance water quality and aquatic habitat— as evidenced by land trusts’ efforts to protect watershed health through a variety of conservation tools. This dynamic is especially apparent in the western United States where the scarcity of water means that conservationists need to look at the whole system to be successful in protecting a part.
Increasingly, land trusts are interested in addressing water in their transactions with landowners. In many cases, land trusts seek to ensure that existing irrigation practices continue in order to protect the values of productive working lands and the related habitat benefits of return flows. In other cases, land trusts seek opportunities to conserve water to augment streamflows, as well as to enhance wetlands, riparian habitat and other water-related conservation values. Some land trusts work in close partnership with water trusts, which are nonprofit organizations that engage in and facilitate transactions that involve conservation measures, physical improvements (such as structural upgrades or low flow channels) and returning water to important streams that have dried up. Western states recognize and provide protection for the public values of instream flows, although laws and programs vary considerably among states.
This book offers practical tools and resources to help land trusts address water-related conservation values in their private land conservation work. While emphasizing instream flows, many of the approaches described are applicable more generally to water-related conservation values, such as riparian habitat, wetlands and seasonal water bodies. This book will help readers identify the various ways water concerns arise in land trust transactions and understand different approaches to address those concerns. Chapter one provides an orientation to the ways land and water trusts address water as a conservation value, including comparison of their approaches and observations about shared goals and strategies. Chapter two goes on to present the highlights of a survey of conservation organizations working to protect land and water in the West. This chapter offers case studies of organizations doing innovative work. Lastly, the book
concludes with final thoughts in the Afterword and a series of appendices that are a rich resource of information, from an overview of western water laws and instream flow programs to sample water rights language in conservation easements to sample water lease agreements. The book also contains a list of additional resources and a glossary that offers full definitions of important terms (sidebar definitions are abbreviated in some cases).
Currently, there are two distinct strategies for addressing water in relation to private land conservation:
1) Conservation easement language. Easement language may address the risk that water rights associated with a conservation property might be transferred away from the property, to the detriment of the water-related conservation values. Easement language also seeks to accomplish a variety of different outcomes, including:
o Prohibiting a change of water use from irrigation or other existing applications
o Allowing a permanent or temporary change of use, as allowed by law, such as dedication for instream flow
o Explicitly requiring a change in the water right (including timing, point of diversion or place of use) in order to achieve conservation goals
Negotiating easement language is most successful when the land trust recognizes that the landowner will want to reserve some of the water rights for other uses, including conservation measures.
2) A separate water transaction. A public agency or facilitating organization, such as a water trust, may provide a valuable incentive (cash payment, direct subsidy or tax incentive) for a landowner to improve water infrastructure or to take other steps to make changes in land and water management on the conservation property. The landowner may redirect some of the existing water diversion to supplement streamflows or otherwise enhance the environment. These transactions include:
o Implementing irrigation improvements that allow operations to continue with more efficient use of water
o Applying other changes to water infrastructure, such as new headgates that divert water closer to the area of use to reduce stream depletions while still delivering the full quantity allowed
o Changing crops to less-thirsty varieties of plants o Forgoing diversions during all or part of the irrigation season
These strategies are not exclusive of one another, and they need
not occur simultaneously. Each landowner has unique interests with regard to water, and the tool that works to address conservation values in one state or situation might not be available, appropriate or the best option in another. In some cases, funding sources require specific language regarding water rights to be included in conservation easement documents. In other cases, a temporary arrangement is the best way to build trust and to determine how modifications to water use might achieve mutual goals. Converting water away from traditional uses such as irrigation may raise concerns among landowners and agricultural community members. Acknowledging this reality, this book contains some practical approaches that strike a healthy balance among multiple land and water uses and community priorities, including water supplies and needs for grazing, farming, recreation, wildlife habitat and drinking water, as well as meeting legal obligations for water resources shared across basins and between states.
Although there is no single recipe for success, effective initiatives share the following strategies:
1) Develop a shared conservation vision with the landowner that includes water as part of a larger suite of conservation values. If the transaction aims to protect working lands under irrigation, continued application of water is an essential element of success. The same is true for agree- ments aimed at maintaining or restoring functioning riparian and aquatic habitats. As most water law experts conclude: “Land trusts ignore water rights at their peril.”
2) Conduct due diligence with regard to existing water rights when negotiating a private land conservation transaction that includes water-related conservation values. When a secure water supply is needed to sustain the conservation values, negotiate this requirement as part of the conserva- tion easement and recognize that the water rights will be an important element of
the property appraisal, given the higher value of land that has reliable water. Even in cases in which it is not feasible to explicitly address the water rights in a conservation easement, a land trust should conduct water rights due diligence before completing the transaction. As part of this due diligence, planners should consider whether measures might be necessary to ensure continued access to essential water to protect the property’s conservation values. Due diligence includes evaluating the validity of the water right, its relative priority in relation to other water users’ rights on the stream and the ability to protect the water right if there is a shortage or conflict with other users. In some states, such as Colorado, conducting due diligence on encumbered water rights is a requirement for organizations to be certified to accept conservation easements that qualify for state tax exemption.
3) Share information with landowners about financial incentives for land and water management practices that will benefit streamflows. Working on the same principle of voluntary, market-driven transactions as land trusts, water trusts offer a variety of incentives for land and water management practices that will enhance streamflows and other aquatic resources on working landscapes. Land trusts are in the best position to provide this information to interested landowners, so they should become familiar with the range of opportunities available in their state or region.
4) Build and maintain cooperative relationships with organizations and individuals who have specialized knowledge of water rights and water transactions in your state. Although few land trusts employ water lawyers or experts in the administration of water rights, many have discovered the value of developing good relations with the owners and managers of water rights—from the farmers and ranchers themselves to the water districts, water-user associations, local and state agencies that manage water, water trusts and other organizations. The value of building
and sustaining good working relationships with partner orga- nizations cannot be overstated. Land trusts can benefit by looking for opportunities to share information, providing a range of conservation opportunities for landowners and helping achieve complementary conservation goals. There is legitimate concern among both land and water trusts about limited funds available to finance land and water conservation, which can lead to a sense of competition that may inhibit the groups’ willingness to cooperate. Joint initiatives, such as the Deschutes Partnership, a collab- orative effort to restore the watershed of the Deschutes River in Oregon, have created opportunities for new and additional funding, which suggests that land and water trusts benefit by collaborating on strategies to maximize conservation outcomes and simplifying the conservation process for landowners.
The stories, tools and resources in this book seek to support and strengthen efforts to protect water resources as a regular part of private land conservation work and to encourage productive partnerships with water trusts and many other partners who share long-term goals of sustainable land and water use.
Enjoy!
“The health of our water is the principal measure of how we live on the land.” —Luna Leopold (from the Summary)
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