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 purpose of this documentation is to assure and certify to DNR that the applicant will comply with the following requirements:
- The project is being constructed on land that is and will continue to be under the control of the municipality.
- If the municipality does not own all of the land on which the project is being constructed, the applicant has obtained or will obtain and maintain for at least the entire loan term (preferably in perpetuity) easements or permits for access to the property that is not under ownership of the municipality but is necessary for the project.
CODE REVISION
New versions of chs. NR 162 (CWFP) and NR 166 (SDWLP), Wis. Adm. Code, became effective on Nov. 1, 2023.
- For State Fiscal Year (SFY) 2024 applications, the municipality must submit to DNR a legal opinion from their attorney regarding land ownership and easement rights, if applicable.
- For SFY 2024 supplemental applications, see Statutes & Codes to determine which version of the code applies to your project.
- For SFY 2025 projects, the municipality must sign and submit a certification form regarding land ownership and easement rights, if applicable.
LSL replacements
An applicant is not required to submit a certification or legal opinion for portions of a project that include removal of lead service lines (LSLs) or galvanized pipe on private property.
CERTIFICATION
Effective with SFY 2025 financing, the applicant must sign and submit a certification regarding ownership of the land or required easements and permits for access to the land, or both, on which the project takes place. In addition to or in lieu of a certification, the DNR may require the applicant to submit a legal opinion when it is necessary, as determined by the DNR, to establish land ownership or easement rights, or both, of the project site.
Form
The applicant must submit to their DNR loan project manager a completed, signed certification at least six weeks before its municipal meeting at which the financial assistance agreement (FAA) will be signed.
LEGAL OPINION
If required by the DNR, the applicant must submit to their DNR loan project manager a legal opinion written by its attorney regarding land ownership and acquisition of easements, access permits, and right-of-way permits at least six weeks before its municipal meeting at which the FAA will be signed.
Examples of when the DNR may require a legal opinion in addition to or in lieu of a certification include:
- projects for which new land is being purchased by the applicant; or
- the applicant is extending its facilities onto land on which no municipally owned infrastructure was previously located.
ATTORNEY’S REVIEW
The legal opinion must include information regarding the documents the applicant’s attorney reviewed or researched to prepare the legal opinion. The purpose of the legal opinion regarding land ownership is to provide evidence to the department that the project is being constructed on land that is and will continue to be under the control of the municipality. Appropriate documents for an attorney to review include any of the following:
- Plat maps
- Wisconsin Department of Transportation (WisDOT) permits
- Municipal easement documents
- Utility easement documents
- County property tax documentation
- Property titles and deeds
- Project site maps and plans
- Other permits and legal documents applicable to the land on which the project is taking place
Note: Having a discussion with a project engineer or looking at the project plans and specifications are insufficient actions for purposes of preparing the legal opinion, as neither of them provides the attorney with documented information regarding land ownership and easements.
MUNICIPALITY OWNS THE LAND
If the applicant already owns the land on which the project is taking place, the legal opinion must include all of the following statements confirming that:
- the applicant owns and controls the land on which the project is being constructed and will own the land for the entire loan term;
- the land on which the project is taking place is available for the project or will be available prior to the start of construction; and
- the project is being constructed within the boundaries of the land owned and controlled by the municipality.
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 its attorney, the DNR may accept or require a title opinion as proof of land availability.
MUNICIPALITY DOES NOT OWN THE LAND
If the municipality does not own all of the land on which the project is being constructed and/or necessary to access the project, the legal opinion must include all of the following:
- a statement confirming that all necessary easement rights are secured for the property on which the project is taking place;
- a statement affirming that the easement rights are at least for the entire loan term (preferably in perpetuity); and
- information regarding permit access to the land if the applicant cannot obtain an easement, including situations in which the Wisconsin Department of Transportation has control of a highway that is being disturbed during project construction.
PERMIT ACCESS
When constructing a project that requires work on a state or federal highway, make sure you check with the Wisconsin Department of Transportation (WisDOT) to determine what, if any, types of permits you will need. The municipality must have appropriate right-of-way (ROW) permits to be able to legally do the necessary work in the roadway and maintain the project throughout the entire loan term. The DNR loan project manager may request a copy of the WisDOT permit if the highway is not designated a connecting highway by WisDOT.
If project construction requires work on a state or federal highway, the applicant must assure DNR that all permits necessary for the project are obtained from the WisDOT for constructing, operating, and maintaining the applicant’s infrastructure in WisDOT ROWs throughout the entire loan term.
If the applicant receives a permit from the WisDOT for a project, the legal opinion must include all of the following:
- the WisDOT permit number in text and comments regarding easements and rights-of-way; and
- a statement affirming the applicant’s legal ability to perform future maintenance of pipes, hydrants, catch basins, manholes, or any other infrastructure that is part of the project throughout at least the entire loan term.
If there are other permits or agreements necessary for access to the land on which the project is taking place that are not from the WisDOT, the legal opinion must include information regarding these other types similar to that required for a WisDOT permit.
- Contact information
- Direct land and easement questions to your assigned DNR loan project manager.