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Environmental Loans (EL) Land ownership and easement rights

Land ownership and easements documentation is required for both Clean Water Fund Program (CWFP) and Safe Drinking Water Loan Program (SDWLP) projects. The applicant municipality must submit to DNR a legal statement or opinion from their attorney regarding land ownership and acquisition of easements and rights-of-way.

Attorney's review

The municipality's attorney should include in the legal opinion information regarding what documents they reviewed or researched to prepare the land/easements opinion. Having a discussion with a project engineer or looking at the project plans and specifications are insufficient actions for purposes of preparing this legal opinion, as neither of them provides the attorney with documented information regarding land ownership and easements. Some appropriate documents to review may include: plat maps, DOT permits, municipal easement documents, utility easement documents, or county property tax documentation.

The attorney may write one opinion or separate opinions to address any of the following documentation requirements applicable to the project.

Land ownership documentation

If an applicant already owns the land on which the project will be located, the applicant must submit to DNR a legal opinion stating all of the following:

  • The applicant owns and controls the land on which the project will be constructed and will own the land for the entire loan term.
  • The land is available for the project or will be available prior to the start of construction.
  • The project will take place within the boundaries of the land owned and controlled by the applicant.

Title opinion in lieu of land ownership legal opinion

If a municipality is unable to obtain a legal opinion as proof of land ownership from their attorney, Environmental Loans requires a title opinion as proof of land availability.

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Easements and rights-of-way documentation

If it is necessary for an applicant to obtain or maintain easements for property on which the project will be constructed, the applicant must submit to DNR an opinion from their attorney stating all of the following:

  • All easement rights have been secured for property on which the project will take place.
  • The easement rights are for at least the term of the loan (preferably in perpetuity).
  • If any part of the project is taking place on a federal or state highway, see the rights-of-way for work on federal and state highways section below for additional statements to include in the legal opinion.

Land purchase documentation

If an applicant requests CWFP or SDWLP monies for a land purchase, they must submit to DNR a copy of the title warranty deed for land purchased and a legal opinion stating all of the following:

  • The applicant has ownership interest and control of the land on which the project will be constructed for a period of at least the term of the loan.
  • The land availability is not terminable by another party or an event outside the control of the applicant.
  • The land is available for the project or will be available prior to the start of construction.
  • The property is clear of liens.

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Eligibility of land-related costs

Costs of purchasing land are eligible if the land is an integral part of an eligible CWFP or SDWLP project. For information regarding required documentation when requesting reimbursement for land-associate costs, see invoice documentation.

CWFP eligible land costs

Eligible land-related costs include any of the following:

  • Administrative and legal costs related to acquisition of land, easements, and rights-of-way, including costs incurred to obtain the land legal opinion as proof of ownership.
  • Purchase cost of land that will be used for storage of treated wastewater in land treatment systems before land application.
  • Purchase cost of land that will be used for sludge spreading.
  • Purchase cost of land that will be used for composting or temporary storage of compost residues that result from wastewater treatment, if the department has approved a program for use of the compost.
  • Purchase cost of land on which a treatment plant, biosolids facility, lift station, or structural urban BMP will be located, including urban corridors needed to support integrated systems of treatment works or structural urban BMPs for urban runoff.
  • Purchase cost of buffer areas, especially in urban areas, and reasonable landscaping costs for the buffer areas.
  • Acquisition cost of land on which individual systems will be located if the systems are publicly owned and maintained.

SDWLP eligible land costs

Eligible land-related costs include any of the following:

  • Administrative and legal costs related to acquisition of land, easements, and rights-of-way, including costs incurred to obtain the land legal opinion as proof of ownership.
  • Acquisition cost of land, when purchased from a willing seller, that is integral to the project, including land needed to locate a treatment facility, transmission main, storage tank, pump station, or well.

Ineligible land-related costs

Land-related costs that are ineligible for financial assistance include the following:

  • Any portion of the cost of a land acquisition determined to be excessive.
    • Note: DNR may require a certified appraisal to determine reasonableness of cost.
  • Any costs related to leasing land or buildings.
  • Any acquisition costs related to land not integral to the approved project.
  • Any portion of the land-related costs, including legal costs, that are for land determined to be ineligible for CWFP or SDWLP financing or ineligible for the specific project.

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Condemnation

Since land purchases must be from a willing seller to be eligible for SDWLP financial assistance, all costs related to condemning land for a project are not eligible under the SDWLP.

If a municipality is condemning land for a CWFP project, Environmental Loans will not schedule a loan closing until the condemnation process has reached and completed at least the jurisdictional offer phase, and very likely not until the purchase is complete. Costs associated with the condemnation process are eligible only through the jurisdictional offer phase. A municipality and/or those working on the condemnation process for the municipality must break out costs on invoices to clearly show costs incurred through the jurisdictional offer phase vs. those costs incurred after completion of the jurisdictional offer phase.

Rights-of-way for work on federal & state highways

When constructing a project that requires work on a state or federal highway, make sure you check with the Wisconsin Department of Transportation (WisDOT) [exit DNR] to determine what, if any, types of permits you will need. The municipality must have appropriate rights-of-way to be able to legally do the necessary work in the roadway and maintain the project throughout the entire loan term. The CWFP project manager may request a copy of the WisDOT permit if the highway is not designated a connecting highway by WisDOT.

If the municipality receives a permit from WisDOT for a project, the attorney writing the legal opinion on land should include the WisDOT permit number in comments regarding easements and rights-of-way and mention the municipality's ability to perform future maintenance of pipes, hydrants, catch basins, etc. after the project is complete and throughout the loan term.

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Last revised: Monday October 15 2018