In those states with water rights laws, the issue of retaining water rights with the property in order to maintain conservation values is addressed in the conservation easement. Conservation easement terms generally address water rights in one of two ways:
1. Retain All Water Rights. In these easements all water rights that are appurtenant to the property are restricted to use on the property. Land trusts prefer this approach since water is kept on the property to sustain the conservation values that make the property special. These provisions prohibit the sale or transfer of water rights to other properties or parties.
2. Retain Sufficient Water Rights. In these easements, the owner and the land trust work to understand what quantity or which water rights are essential to sustaining the primary conservation values on the property. For example, if there are wetlands or riparian areas, these easements require sufficient water at different times of the year to sustain healthy ecosystems. By looking at the water rights for the property, the parties can evaluate ample water rights that need to stay on the property to keep these values healthy. The easement is written so that specific water rights are retained on the property with the possibility of severing others. In some of these easements, land trust approval is required prior to actually severing of water rights.
Both of these approaches have worked well in practice. The bottom line is that both the landowner and land trust should work to ensure that sufficient water is retained to support the conservation values that are being protected through the conservation easement. |
