Draft Regulation for Conservation Easement Modifications
Proposed Part 592 Regulation
Current conservation easements held by the Department (DEC) contain clauses that allow easements to be modified with the concurrence of DEC and the private landowner only if the modification(s) further the purposes of the easement. The proposed Part 592 regulation (DEC has never promulgated regulations on conservation easements) simply builds upon Environmental Conservation Law (ECL) Article 49 by formalizing, in regulation, the standards and procedures DEC staff currently follow when modifying a conservation easement. Part 592 ensures that if the DEC was to propose modifying or extinguishing an easement, the public would be afforded plenty of opportunity to comment on such a proposal through public notice, publication in the State Register, hearings and a comment period. The conservation and environmental community have urged DEC to draft this regulation.
Stakeholders consulted during the development of Part 592 include: Adirondack Wild, Adirondack Mountain Club, Protect the Adirondacks, Adirondack Council, The Forestland Group, Paul Smith's College, Danzer Forestland Inc, Elk Lake Land Inc, Wood Wise Forestland LLC, Lyme Timber Co., Rayonier Forest Resources, Timbervest LLC., RMK Timberland Group, Molpus Timberlands, The Nature Conservancy, Boy Scouts Of America, Northeastern Loggers Assn, Sabbatis Land Co, Northwest Roads LLC, Cedar Heights Timber LLC, Dunkirk Power LLC, Park Forestry LLC, WCBE Forestry Co, Woodfield Investments, Inc, Greater Allegany Preservation Inc, Gunville Energy Systems Inc, Adirondack Mountain Reserve, NM Holdings, Inc, Open Space Institute, Town of Bolton, Rochester Gas and Electric Corp, NYSEG, Consolidated Edison, Central Hudson Gas and Electric, National Grid, NY Power Authority, individual conservation easement landowners and the Forest Preserve Advisory Committee (FPAC).
The DEC currently manages about 900,000 acres of conservation easements - 849,000 of which are "working forest" easements and approximately 50,000 acres are in non-development easements. The main purpose of working forest easements is to keep forests as forests, providing a multitude of benefits to society. They require sustainable timber harvesting, eliminate non-forestry oriented development and usually provide some form of public recreation rights. Many easement holders (most are Timber Investment Management Organizations, commonly referred to as TIMOs) lease a portion of their lands to private hunting and recreational clubs to help defray the costs of owning the land. Most requests for modifications involve requests by TIMOs to expand their leasing programs, without infringing on the public recreation rights already granted or changing sustainable forestry practices. In the Department's 30 year history of holding conservation easements, the DEC has never received one complaint from the public about conflicts with private leaseholders and the land remains in forest forever as required by the easement.
The original legislation that created conservation easements (ECL Article 49, Title 3) was a long sought effort by conservationists and environmental groups to bring this important conservation tool to use in partnership with willing private land owners. ECL Article 49-307 gives statutory authority allowing the Commissioner of DEC to extinguish an easement upon proof that it "is of no actual and substantial benefit". The DEC has never extinguished easements because most of them have been paid for by DEC and their terms enforced over the years.
DEC is proud of its record of conserving lands through its conservation easement program. It keeps land in private ownership and on local tax rolls, while cost effectively achieving tremendous environmental and outdoor recreational benefits. DEC is a leader in the country in using easements to conserve important landscapes. Indeed, DEC's conservation easements, most of them in the Adirondacks and Tug Hill, amount to more acreage than DEC's century-old State Forest system and about one third of the acreage in the Adirondack Forest Preserve, which has been adding acreage since the 19th century. DEC wishes to add to this legacy in the future, and the proposed regulations will ensure that the public is involved any time a modification or extinguishment is proposed.
The 45 day public comment period concluded on February 13, 2016.