Top 10 Changes to the minimum requirements for ALTA surveys
#5: Have they cleared up the wetland confusion?
When the 2011 ALTA standards took effect, one of the more significant changes was the addition of Optional Table A, Item 19, pertaining to wetlands. It is not surprising that wetlands were incorporated into the 2011 ALTA standards. In fact, it seems appropriate considering that they not only impact a property’s development potential, but have become increasingly regulated at both the state and federal levels. What surprised many though was the amount of confusion that the verbiage created amongst owners, surveyors, attorneys, title companies, and lenders. The updates found in the 2016 ALTA standards aims to clarify things.
The 2011 ALTA standards verbiage for Optional Table A, Item 19, reads: “…location of wetland locations as delineated by the proper authorities.” A great deal of discussion has ensued regarding this statement as it applies to the ALTA survey. For example, does it mean that a wetland delineation is supposed to take place as part of selecting this requirement? Who is the proper authority? What is the surveyor’s responsibility? And, the owner’s? The list goes on.
In the course of my work performing ALTA surveys, wetland discussions among project stakeholders usually steered towards scope, timing, and cost. Through those conversations, we were able to flesh out whether or not an actual wetland delineation was needed. In some cases, we were able to map approximated wetlands from the National Wetland Inventory database. In others, complete delineations were performed by one of our qualified environmental scientists at Westwood. The key though, was that the project stakeholders came together early in the process to determine what was needed in the best interest of advancing the project.
Subsequent to the addition of the 2011 ALTA standards, Optional Table A, Item 19, there have been many discussions within the title and survey communities in regard to interpretations. Certainly, most land surveyors are not qualified environmental scientists and should not be relied on for the determination of wetland boundaries. Nor do most surveyors want to take on the responsibility or liability of that service. Wetland delineations should be performed by qualified environmental scientists that understand the characteristics of a wetland, and the rules and regulations governing them.
The consensus seems to be that the intent of the 2011 standards was for surveyors to locate any observed wetland locations that were flagged in the field – usually at the direction of the owner or client. That brings us to the 2016 ALTA standards. First, due to the elimination of a table item, the new wetland verbiage is now Item 18 on the Optional Table A items. The text has been revised to: “If there has been a field delineation of wetlands conducted by a qualified specialist hired by the client, the surveyor shall locate any delineation markers observed in the process of conducting the fieldwork and show them on the face of the plat or map. If no markers were observed, the surveyor shall so state.”
This is a welcome change to surveyors, attorneys, title companies, lenders, and owners alike. It clarifies that the surveyor is not responsible for performing the wetland delineation; although they still can, assuming they have the proper qualifications. There is also additional guidance given in regard to how wetlands, or the lack thereof, are shown on the face of the survey.
Like many things that affect real property, wetlands are not a black and white issue. Both the surveyor and the client are still able to negotiate the extent that wetland locations be shown on an ALTA survey. On the other hand, the update in the 2016 ALTA standards brings clarity to the original intent and provides additional guidance related to the depiction of wetlands on an ALTA survey. I am confident that this change will help mitigate much of the past confusion.
Coming up next - #4: What’s the deal with setbacks?
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