DELTA STEWARDSHIP COUNCIL: Easements: A tool for preserving resources we value, or a straight-jacket that will limit our ability to adapt to a changing world? A study from Paradise Cut

A conflict over easements complicate progress on a badly needed flood bypass for the San Joaquin

The Paradise Cut Bypass Expansion Project is a multi-benefit project that would reduce flood risk and improve habitat while maintaining agricultural land along the San Joaquin River near Manteca.  The project would increase the flood conveyance capacity by lengthening and widening Paradise Cut and constructing a second weir to allow more floodwaters to overflow into the bypass.

The San Joaquin County Resource Conservation District and American Rivers have been awarded Proposition 1 grants of $2 million from the Delta Conservancy and the California Department of Fish and Wildlife, respectively, to purchase flood and conservation easements on up to 2,000 acres in the acquisition zone for the purposes of expanding the Paradise Cut bypass.  However, the Central Valley Farmland Trust holds an agricultural conservation easement on a 1,070-acre parcel within the proposed bypass expansion area, and acquisition of a flood easement on this parcel is essential to advancing the bypass expansion project.  The Central Valley Farmland Trust (CVFT) is suggesting that acquisition of the flood or conservation easement, however, could potentially limit the potential future economic productivity of the property and could therefore be inconsistent with the agricultural purposes of the CVFT easement. Addressing the constraints of this easement has delayed progress on this project.

At the February meeting of the Delta Stewardship Council, a panel discussed how different easements control what can be done on the landscape and how this introduces challenges to moving forward even on broadly supported projects.  These are challenges that are likely to occur elsewhere in the Delta as projects are oftentimes proposed on lands with easements. As a result, the Paradise Cut project is a case study to help illustrate the challenges of implementing a broadly supported multi-benefit project with properties that have existing conservation easements.

Seated on the panel:

  • John Cain, Director of Conservation for California Flood Management with American Rivers. Mr. Cain will provide a NGO perspective on the multi-benefit project, specifically as it relates to achieving flood benefits, along with long-term habitat restoration measures.
  • Charlotte Mitchell, Executive Director of the Central Valley Farmland Trust. Ms. Mitchell will cover what role the Farmland Trust has in protecting agricultural lands through agricultural conservation easements.
  • Dr. Nat Seavey, Research director for the Pacific Coast and Central Valley group, Point Blue Conservation Science. Dr. Seavey will speak to some of the challenges of permanently preserving landscapes in a system that is changing due to climate change, sea level rise, and other stressors.

Delta Stewardship Council Senior Environmental Scientist Ron Melcer began by discussing the three different types of easements:

  • Flood easement: Flood easements restrict encroachments and are meant to preserve the ability to convey water down the floodway, as well as preserve access for flood fighting activities and inspections of facilities during non-flood events.
  • Agricultural conservation easement: Easements that address agriculture are written in a way that attempts to protect that space for the agricultural sector to continue to farm and to apply practices and crops that align with the market.
  • Habitat easement: These can vary, depending on the specific objectives and the context. The intent is to establish and preserve ecological objectives on the landscape.  In some cases, for certain species that have adapted to agricultural practices, this can coexist with agriculture; for other situations, it may actually conflict with agricultural conservation easements.

Mr. Melcer noted that flood easements often put limits on the types of vegetation communities that can grow in the floodway which can conflict directly with both of the other types of easements, which is what is happening with Paradise Cut.

JOHN CAIN, American Rivers

John Cain began by giving a brief overview of the Paradise Cut project.  He presented a map, noting that the red arrow shows where floodwaters normally are conveyed down the San Joaquin, and the blue arrow is where the Paradise Cut bypass would be expanded to convey flood waters out of the urbanizing corridor between Manteca, Lathrop, and Stockton, and into the primary zone of the Delta.

It not only reroutes and redirects flood waters away from high risk urban areas like the Yolo Bypass does; it also expands the total flood carrying capacity of the lower San Joaquin River which has benefits,” he said.

The Paradise Cut Bypass Expansion Project is a multi-benefit flood management project which would reduce flood risk and expand the capacity of the system; increase flexibility for reservoir management; protect and conserve agricultural land, both in the expanded footprint area and outside of the expanded footprint area; provide major habitat benefits for terrestrial species; and ultimately increase the area of floodplain habitat for native fish.

The project has been identified in state plans and legislation for several years.  David Kennedy, the Director of DWR after the 1997 flood, had the book, Battling the Inland Sea reprinted.  He wrote the forward for the book, saying that it’s about time we build a flood bypass on the San Joaquin because the flood bypass system works so well on the Sacramento River.  At the end of the forward, he wrote, ‘it is hoped that these issues will be resolved and changes will be made before the next flood.’

Mr. Cain noted that SB 5, which created the 200-year urban level of flood protection requirement, included discussion of Paradise Cut; the 2012 Central Valley Flood Protection Plan included Paradise Cut, as did the Delta Plan in 2013.  The 2017 Central Valley Flood Protection Plan reiterated the need for Paradise Cut.

We’re making some progress, but as you’ll see, we’ve got a long way to go and we’re going to need more than the passive voice to get this done,” John Cain said.

The Paradise Cut project really hasn’t changed significantly since it was adopted as part of the flood plan, in terms of its footprint, Mr. Cain said.  The green on the map is the existing Paradise Cut, which is a very small distributary channel of the San Joaquin; the yellow is the proposed expansion.  In the lower right hand corner of the map, they are proposing a new weir approximately 1000 feet long; the floodwaters would flow into the expanded area, much like a forebay, attenuating the peak flows, and then it would flow down the existing Paradise Cut.

The project has been the subject of numerous modeling studies which show that it would lower the flood stage for the 200 year flood by over 2.5 feet, which is a substantial benefit in flood management.  “It would lower the flood stage along 30 miles of river, all the way from the Port of Stockton to the confluence of the Stanislaus, and probably going up the Stanislaus River a little bit as well,” Mr. Cain said.  “It would significantly reduce flood risk for the 30,000 residents that already live on reclamation district 17 as well as approximately 10,000 acres of farmland upstream and downstream of Highway 5 along the San Joaquin River.”

One of the key reasons the project has a lot of local support is that the modeling shows that the extended bypass area would only get inundated once every 12 years, so the existing agricultural uses of the property, currently field crops, would be able to continue largely unchanged with this new flood bypass.

Project status

The Paradise Cut Bypass Expansion Project is included as one of three keystone projects in the Central Valley Flood Protection Plan.  American Rivers and the San Joaquin Resource Conservation District have received a grant from the Delta Conservancy to implement a $200,000 planning study.  Meanwhile, DWR is conducting a more detailed engineering design.

There is $4 million in grants available to purchase easements and American Rivers is currently negotiating with landowners to purchase flood and easement acquisition on the 2000 acres necessary.  There is additional funding available through Prop 1, so they have enough funding for all the acquisitions necessary.  They already have appraisals on 3 properties that constitute 70% of the bypass expansion area.

The effort to acquire easements is being stymied by one key parcel on which there is already an agricultural conservation easement which prohibits new flood and habitat easements.  The existing easement is held by the Central Valley Farmland Trust.  The language in the easement is standard for most agricultural easements says, ‘the grant of any easements or other interests in land or use restrictions that might diminish or impair the agricultural productive capacity or open space character of the property is prohibited.’

Mr. Cain said they’ve heard arguments that the flood easement wouldn’t really impair capacity, because the land is being used for its highest use, but the language in the second bullet is what makes it challenging:  ‘The grantor may grant subsequent conservation easements or restrictions on the property, provided that such easements or use restrictions do not significantly restrict agricultural husbandry practices,’ meaning it doesn’t restrict the type of crops that can be grown.

The easement that we currently have written and we currently have funds for is a habitat easement that restricts vines and orchards,” he said.  “For a flood easement, you would normally want to restrict vines and orchards, but the Feather River floodway has orchards in it, so it’s not unheard of to have orchards in a floodway but it’s not particularly good flood policy.”

So American Rivers has been working with the Central Valley Farmland Trust in trying to figure out how to resolve the conflict.  They convened an expert panel to advise them, who told them, ‘yes, you have a conflict, and there are not a lot of good legal options here for resolving this conflict.’  They noted that the easement is perpetuity on the property, and a restriction on trees and vines would be in violation of that easement.  If the Central Valley Farmland Trust agreed, they could get sued; DWR could say the easements are in conflict and decline to commit to the project with the legal uncertainty.

CHARLOTTE MITCHELL, Central Valley Farmland Trust

The Central Valley Farmland Trust is a non-profit agricultural organization that works with landowners and farmers to put agricultural conservation easements on their land.  There is a selection criteria to ensure that the properties are prime and appropriate to protect in ag conservation.  The easement is a private contract between a willing seller and the Land Trust and is held in perpetuity.

The core goal of an ag conservation easement is to ensure that agriculture remains viable forever,” said Charlotte Mitchell.  “That’s a pretty daunting task and so we take that pretty seriously in terms of what we look for to ensure that there is viability on that land to carry forth agriculture productivity-wise.”

The Central Valley has real uniqueness in terms of its prime soils, its climate, and its producing food, not just regionally but around the world; it also provides a working landscape for the environment, a viewshed, space between cities, and a variety of other things, she said.

The landowners are precluded from turning their land into shopping centers and houses; they just have to keep it farmed.  “Our easements, while they are somewhat negotiable, … they leave room for flexibility, and that is the key goal for agriculture,” she said.  “As farmers, we need to remain flexible in order to be viable, so if a crop no longer has the market content, we have to ensure that we can change that cropping type in order to remain in an agricultural capacity and viable as farmers.”

Flexibility is important. “Certainly we’re a different industry today than we were 20 years ago, and certainly 50 years ago; we have to keep that flexibility,” said Ms. Mitchell.  “We have to ensure that our ag productivity capacity is not impaired. I think that’s an important aspect of our conservation easements in ensuring that in this situation of Paradise Cut, so that choice of that current landowner or any future landowner could be the planting of an almond orchard.  That’s key to an understanding that that option does exist even in this floodway that is currently there present today.  And certainly we want to make sure that that flexibility can be there moving forward.”

The Central Valley Farmland Trust, as an agricultural organization, is supportive of this flood improvement of Paradise Cut as an agricultural organization.  “It’s important to the agricultural community that surrounds it, the urban community, and we want to ensure that we’re a working partner in this as we move forward, and that’s why I am committed to work with John on how we can do this in the confines of our current easement,” said Ms. Mitchell.  “I have an organization that has to be around for a long time, so we want to make sure that we’re not put in a position where we have complications afterwards because of it.  I think there is opportunity to be flexible, and I think that’s key to agriculture, it’s got to be key to the working dynamics of this area as well, and hopefully out of this dialog, we can be thoughtful about how we treat and understand all types of easements.”

DR. NAT SEAVEY, Point Blue Conservation Service

Dr. Nat Seavey is a wildlife biologist with Point Blue Conservation Science, a non-profit organization that works across the state to look at opportunities to protect ecosystems for the benefit of wildlife and people.

We and many scientists throughout California are looking to identify ways we can come up with multiple benefit solutions to some of the really tough challenges we have out there,” began Dr. Seavey.  “Those multiple benefit solutions are in the way that we manage our lands, such that they provide economic value, water supply values, habitat and ecosystem values, flood protection, and all of these different things that we want in the future.”

With California’s growing population, there is increasing pressure for development, so easements are a fantastic tool in terms of protecting farms and protecting ecosystems from expanding urban sprawl, he said.

Dr. Seavey noted that in many places where land trusts area active, you might see signs that say ‘protected forever’.  “I think that raises an interesting question about what does it mean to protect a place forever,” he said.  “I’m not going to tackle forever, but even just within a 50 year time horizon, it’s interesting to think about the amount of change we might think about during that 50 years.  That 50 years is going to see dramatic changes in technology.  If you think about the way we farmed 50 years ago, we did not have GPS, so much of the technology we use in farming today wasn’t around 50 years ago.  The economy is going to change dramatically and the demand for different crops will change.  Water availability will change; we see this right now when we think about California and the implementation of SGMA, which will require that less groundwater is pumped in order to meet sustainability, and that’s going to mean fallowing some agricultural lands, and potentially some managed wetlands.  Then there’s climate change, which is going to touch California in many ways, including sea level rise, changes in temperature and precipitation, and changes in the snowpack and runoff.

Dr. Seavey said it’s important to think about a long-term solution for the Delta that has the ability to accommodate that change.  He sees two specific opportunities for the Council to provide leadership and guidance on that:

  1. It’s important to come to a good solution to the conflict in Paradise Cut, because it likely won’t be the last time that we run into this kind of situation, and it’s going to happen more as we think about rising sea levels and how we manage places differently as the environment continues to change, he said.
  2. Looking beyond Paradise Cut, it’s important to make the conservation mechanisms we put in place flexible and adaptive in the way that they need to be. I think the easements remain an extremely important tool, and there are ways that we can look towards designing those easements such that they provide greater flexibility.

Dr. Seavey noted there are interesting opportunities to think about conservation of ag lands and of ecosystems in a way that it can be dynamic.  “There’s work that’s gone on by the NRCS and the Nature Conservancy and EDF to think about different systems for protecting ecosystem benefits and agriculture in a way that the places that those occur in the Delta could move around from year to year,” he said.  “The tricky part of that is making sure that you have a system that’s designed in such a way that at the same time it’s dynamic, it provides some reliability.  The term that EDF has been using for that is dynamic permanence.”

DISCUSSION HIGHLIGHTS

Chair Randy Fiorini noted that a few months, Mr. Cain was before the Council, and he highlighted the paradigm shift of land use and easement conflict.  “You were optimistic at the time that a solution would be found.  How’s that going?

I would say I was optimistic more specifically about multi-benefit flood management projects and the idea of developing projects so that you’re achieving different multi-benefits,” John Cain said.  “With the conversation I’ve had with Charlotte and her team, one of the things I’ve heard is, ‘maybe you could just have the flood easement over the Paradise Cut properties, not the flood and habitat easement.’  We have grant funding to have what’s called a ‘flood and habitat easement’.  Because they are doing the same thing, it’s just keeping the land in its existing seasonal agriculture that happens to be very good habitat for Swainson’s Hawk, and it’s really good for flood management.”

So when Charlotte pointed out, if you just did the flood easement and forget about habitat and restrictions on vines and orchards, that might be something that could work, and I could go down that path and I could get into more details about the problems of going down that path,” Mr. Cain continued.  “I could give up on the habitat part of it, but it’s hard after spending years talking about and working with the Farm Bureau on farmland that is habitat, and we can have farmland that’s both habitat and productive farmland, and we can have multiple benefit projects, and then to hear, ‘no, you can’t do it here, just have a flood easement.’  That ramifies, because benefits, when you start talking about DWR and when you work with them, one division of DWR can only pay for the flood benefits, and another division could pay for the habitat benefits, and getting them to work together is still a major challenge, but I’m still optimistic about the flood plan, and I’m optimistic that I’m here today and that Charlotte is still talking to me and we’re thinking of every option available.”

Chair Randy Fiorini asked Charlotte Mitchell if there is any thought to adjust the covenants of future easements to accommodate this situation we find ourselves in?

I think so, and it’s going to come regardless in my opinion with SGMA which is going to change the way agriculture I think is doing business in the future, and I think we need to be a little bit more understanding of how that’s going to look,” said Charlotte Mitchell.  “We’ve come up to a roadblock of traditional ways of these easements being the way they are, which is largely inflexible, and that’s not just speaking from an agricultural standpoint, that’s habitat, and flood, and you can combine all of them.  We need to look at an approach that’s dynamic and our current format, and we don’t have that flexibility because of the opportunities of grant funding that we get from state and federal sources that review and approve these conservation easements that we’re putting on lands now.

We have to be respectful of the easement that’s there which has very specific language that doesn’t allow for the ability to restrict planting of crops, and I think that’s the roadblock obviously that we’re at,” Ms. Mitchell continued.  “I think looking to the future, our organization is having discussions specifically around SGMA to ensure that our conservation easement has that level of flexibility in terms of that, and that ultimately lead into other types, like floodways and those types of things.”

How widespread a problem is this?,” asked Councilmember Ken Weinberg.  “Is this something that we’re going to constantly run into, or is this unique, or you just can’t say?

I’ll just say that I was not an easement expert, I’m still not, but I’m learning a lot about them,” said John Cain.  “What I’ve learned about these agricultural conservation easements is that the ones that are funded by the Farmland Protection Act always has these paragraphs that [protect] agricultural capacity, and to my understanding that the Central Valley Farmland Trust uses this language as standard language, so I think there’s a lot of easements where this same kind of language exists.  Normally it wouldn’t be a problem, but you just don’t know what the state is going to need to do to protect the people of the state from flood risk, or other things in the future.”

One option here, that I don’t relish at all, but it was one that was identified to me early on when I talked to lawyers about this, is the idea that you can actually condemn an easement, but that’s a messy process and in this case, and any time the easement was purchased with state dollars, you get into a real problem,” continued Mr. Cain.  “The state’s going to condemn this land and then we’re going to compensate for the taking.  It gets into the issue of paying the landowner twice for the same thing.  ‘We’re going to buy this easement from you, and then we’re going to condemn this easement,’ and we don’t know how we’re going to solve that riddle.”

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