The U.S. Army Corps of Engineers Fort Worth District has recently started requiring new land title information before submitting a complete prospectus on new wetland and stream mitigation banks.

Complicated Title Issues

There have been a number of projects that have been subject to these new requirements. Title issues can be a complex, and expensive endeavor. Title records frequently go back into the 1800’s. Although the USACE is only requiring a 50-year title search, attorneys should obtain a title record as far back as possible to issue an accurate opinion. Having skilled title attorneys and landmen will help the process go smoother and cost less money in the long run.

Other requirements include:

  • Legal survey depicting all encumbrances
  • Attorney’s opinion of title
  • Surface use subordination from any/all parties with severed mineral, sand, gravel, and/or coal rights to the mitigation bank site

So why is this happening?

It’s all an effort to ensure protection of the mitigation bank site in perpetuity. In many cases, mineral rights have been severed from the surface, and the surface owner cannot restrict a mineral owner’s access to their minerals. This is most typically associated with oil and natural gas, but sometimes surface minerals, such as coal, sand, gravel, etc., have been severed.

In that case, the surface mineral owner could exercise their right to access their minerals by mining the mitigation bank site, which is an incompatible use to a perpetually protected mitigation bank. This additional complexity to establishing a mitigation bank may be necessary to ensure protection of the bank in perpetuity, but it will definitely increase the cost of mitigation in the future.

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About the author

Kate Lindekugel
Kate Lindekugel
As an environmental scientist, Kate has more than 13 years of experience including ecological surveys and field studies, functional assessments, preparing environmental reports and permits, data management, stream channel and wetland restoration, peer reviewed research, and coordinating with local, state, and federal regulatory agencies, as well as public and private stakeholders.