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Part 592 Conservation Easements Summary of Comments

The Department of Environmental Conservation (DEC) proposed draft regulations, Part 592 of 6 NYCRR, establishing procedures for the modification and extinguishment of conservation easements held by DEC. The Notice of Proposed Rulemaking was published in the State Register on December 30, 2015. A total of 51 comments were received from both individuals and organizations during a 45 day comment period that ended on February 13, 2016. While DEC processed and responded to each unique comment in the Assessment of Public Comment, for purposes of this summary, the Department grouped together similar comments and responses. Non-substantive changes were made to the proposed regulation to address public comment and to further clarify the original meaning. A revised rule making is not required.

Purpose and Applicability

Comment:
The regulations should be entitled "Regulations for Conservation Easements and Extinguishments".

Response: For consistency purposes, the title of the proposed regulations is taken directly from Environmental Conservation Law (ECL) §49-0307.

Comment:
Clarification is needed as to whether the proposed regulations apply when a public body, other than DEC, modifies or extinguishes an easement.

Response: The proposed Part 592 regulations apply only to the modification or extinguishment of State-owned conservation easements under the jurisdiction of the DEC. Accordingly, subdivision 592.1(b) has been revised to clarify that modifications or extinguishments of conservation easements by other entities are not the subject of this rulemaking.

Comment:
The regulatory language should explicitly provide that modifications and extinguishments be accomplished in accordance with ECL §49-0301.

Response: The proposed regulations provide that modifications to existing conservation easements will only be entertained if the modification furthers the purposes as set forth in ECL §49-0301. Conservation easements that no longer serve their original purpose should be extinguished. The DEC will make every effort to enforce the original terms of the conservation easement.

Definitions

Comment:
The definition of "conservation easement" is confusing, unduly restrictive, and should mirror the definition and public policy set forth in ECL §49-0303(1).

Response: The DEC recognizes the importance of defining key regulatory terms. Accordingly, the definition of conservation easement has been amended to mirror the statutory definition and policy contained in ECL §49-0303(1).

Comment:
A distinction needs to be made in regards to "extinguishment" of conservation easements and "modification". "Extinguishment" should be defined as the removal of some or all of the land subject to a conservation easement.

Response: Subdivision 592.2(h) of the proposed regulations provide a definition for "modification" of a conservation easement. Since removal of some of the land subject to an easement does not always constitute an "extinguishment", a case specific analysis is necessary and DEC declines to define this term.

Comment:
Subdivision 592.2(k) of the proposed regulations should be amended so that a public body or a not-for-profit organization which is not a holder of the DEC conservation easement can enforce the terms of the easement.

Response: The regulatory definition of "third party enforcement right" is constrained by the statutory definition in ECL §49-0303(4) and therefore, the DEC declines to make this change.

Comment:
The proposed regulations should include language providing that conservation values of working lands supersede conservation values of recreational lands and therefore are a priority for modification of a conservation easement.

Response: Pursuant to the Declaration of Policy and Statement of Purpose in ECL §49-0301, no one purpose for acquiring conservation easement lands is paramount. Therefore, it is not appropriate for the regulations to provide that any of these values takes precedence.

Comment:
The proposed regulations should include explicit language stating that major modifications will follow the State Environmental Quality Review Act (SEQRA) and include a full list of alternatives.

Response: Since all DEC actions including modifications to conservation easements are subject to SEQRA, there is no need to explicitly include this language in the regulations.

Standards

Comments:
The language in §592.3 needs to reflect ECL 49-0301. Section 592.3 must reflect a positive net gain in the conservation values prescribed within the easement, rather than a vague "no net loss of benefits to the state". Conservation benefits must be considered within the spatial confines of the conservation easement. Additionally, the standard for modification should be more specific and the concept of "net benefit" should be clarified. The word "reasonable" should be added to the standards. Finally, the proposed regulation should permit modifications to improve and strengthen the original purpose of the conservation easement.

Response: The regulatory language has been amended to require that modifications result in a net conservation benefit to the purposes of the conservation easement and the other property has some degree of connection to the easement property. The net benefit concept includes a variety of factors including, but not limited to, whether the modification will increase public recreational opportunities or provide additional environmental and ecological protections. Additionally, language has been included in the proposed regulation to allow for modifications to enhance the original purpose of a DEC held conservation easement. A "reasonableness" concept is already encompassed in the "arbitrary and capricious" standard for judicial review of DEC actions.

Procedure and Public Notice

Comment:
The public participation process for modifications and extinguishments of conservation easements is pro forma and lacks an appeals process. The proposed regulation should include consideration of a variety of factors - the purpose of the easement, the conservation outcome, and the need for a modification - in making a determination as to whether an amendment results in a positive or neutral conservation outcome.

Response: Implicit in the public process is the ability of the DEC to modify its proposals based on public comment and to take into account a variety of factors where appropriate. The DEC will not undertake a conservation easement modification which does not result in a net conservation benefit. The proposed regulations do not prevent appeals of DEC determinations as currently authorized by law.

Comment:
Consideration should be given to Standards and Practices of the Land Trust Alliance (LTA).

Response: The proposed regulation is consistent with the LTA's Standards and Practices, however the LTA is a non-profit conservation organization and the DEC is a State agency.

Comment:
The proposed regulations should provide an expedient process for de minimis changes to conservation easements.

Response: All modifications will follow the transparent process outlined in the proposed regulation. This process is not unduly burdensome and the creation of a subjective distinction between minor and major modifications would create unnecessary confusion and delay.

Comment:
The proposed regulations contain conflicting language as to when a non-adjudicatory hearing is to be held.

Response: The DEC has revised the regulatory language in subdivision 592.4(3) to require that non-adjudicatory hearings are "to be held during the public comment period".

Comment:
The proposed regulations should be amended to require notice to the Attorney General when DEC modifies or extinguishes a conservation easement.

Response: Subdivision 592.4(a) of the proposed regulations has been amended to require notice to the Attorney General when DEC modifies or extinguishes a conservation easement.

Comment:
Clarification is requested as to whether determinations pursuant to subdivision 592.4(2)(b) to alter the stated purposes or to extinguish the conservation easement require publication of the "determination and summary of the determination" in the Environmental Notice Bulletin (ENB).

Response: Changes to the proposed regulatory language clarify that the DEC will publish a notice of determination in the ENB.

Miscellaneous

Comment:
The proposed regulations do not adequately take into account funding sources and their associated limitations.

Response: The funding sources used to acquire a conservation easement will be reviewed prior to any modification or extinguishment in order to ensure consistency with the terms and conditions of funding. Prior to modification of an existing DEC conservation easement, an appraisal is required to determine the value of the modification. While these regulations do not alter DEC's historic practice of declining to extinguish conservation easements, ECL §49-0307 does enumerate situations where extinguishments may occur. Most conservation easements have been purchased and paid for with public funds; thus any extinguishment would have to address repayment of the benefit received by the private grantor for the easement

Comment:
The draft regulations preclude landowners who donate conservation easements to the DEC from qualifying for federal tax benefits and allow the DEC to extinguish conservation easements without satisfying federal tax requirements.

Response: The draft regulations do not change the statutory process under which the DEC entertains modifications or extinguishments of conservation easements. Landowners who wish to qualify for any federal tax benefits associated with a conservation easement should consult a tax attorney before they seek modifications.

Comment:
The proposed regulations appear to authorize land swaps and will potentially erode public access for the purpose of hunting, trapping and recreation.

Response: The proposed regulations do not propose wholesale land "swaps" nor do they alter the premise for acquisition of conservation easements - public recreation and natural resource protection. In recognition of these goals, the proposed regulations include a transparent public notice and participation component.

Comment:
The requirements for conservation easements should be uniform and protective of the original purpose of the easement and changes or modifications to conservation easements should be undertaken "to the minimum extent necessary" and in accordance with ECL Article 49.

Response: While the DEC acknowledges that uniformity among conservation easements can be beneficial, it recognizes that the purpose and negotiation surrounding each individual easement will vary thereby requiring a case specific analysis. The proposed regulations protect the original purposes and policies of DEC conservation easements as enumerated in statute and a modification that does not further the purpose of the existing conservation easement, will not be approved. The ECL provisions providing that a conservation easement be amended only "to the minimum extent necessary" apply only to modifications caused by utility transmission lines. With respect to other modifications, no proposed modification may alter the original purposes of the original easement.

Comment:
The proposed regulations should include an Adirondack Park State Conservation Easements Lands Master Plan.

Response: The 2010 Memorandum of Understanding between DEC and the Adirondack Park Agency (APA) Concerning State-Owned Conservation Easements on Private Lands within the Adirondack Park outlines how DEC and APA work together on conservation easements. The DEC does not seek wholesale changes. Each proposed modification will be examined on a case by case basis and the DEC and APA will continue to work together on conservation easement lands.

Comment:
A Recreation Management Plan (RMP) must be completed before DEC conducts a net benefit analysis to ensure that some level of site investigation, data collection and planning analysis is done with the landowner and DEC.

Response: Requiring a RMP is unnecessary since the Attorney General requires the DEC to have an Interim Recreation Management Plan and an approved Baseline Report in place at the time of closing.