Department of Environmental Conservation

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Part 592 Conservation Easements Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL), Article 49, Title 3, is the State's conservation easement statute. Section 49-0305(7) of the Environmental Conservation Law provides, in part, the Department with the authority to promulgate regulations to establish standards and procedures for conservation easements created pursuant to this statute. Conservation easements conveyed prior to the enactment of Article 49 of the ECL are referred to as common law easements. Laws and case law related to the real property conveyances govern the conveyance, modification and extinguishment of a common law easement.

ECL section 49-0301 sets forth the State's policy and the purpose of the statute authorizing the use of conservation easements in the State. This purpose of the statute is to conserve, preserve and protect its environmental assets and natural and man-made resources, the preservation of open spaces, agricultural and forest lands, lands which are significant because of their scenic, natural beauty, wetland, shoreline, geological or ecological character, or their historical, archaeological, architectural or cultural amenities. This preservation is declared to be fundamental to the maintenance, enhancement and improvement of recreational opportunities, tourism, community attractiveness, balanced economic growth and the quality of life in all areas of the State.

Section 49-0303(1) of the Environmental Conservation Law provides, in part, that a "conservation easement" is an easement, covenant, restriction or other interest in real property, created pursuant to the provision in Title 3 of Article 49 of the ECL, which limits or restricts development, management or use of such real property for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the real property in a manner consistent with the public policy and purpose set forth in section 49-0301. Generally, common law conservation easements were also established for similar purposes.

ECL section 49-0307 provides the procedures for modifying or extinguishing conservation easements. ECL sections 49-0307(2) and 49-0307(3) provide, in part, for various procedures which a public body may choose from when modifying or extinguishing a conservation easement. Some of the options in these provisions rely on the procedures already established under law, such as New York State Real Property Actions and Proceedings law, Public Service law or Eminent Domain Procedure law. In addition to these provisions, a public body may modify or extinguish a conservation easement pursuant to ECL sections 49-0307(2)(a) and 49-0307(3)(a) in accordance with any written procedures provided in the instrument creating the conservation easement. ECL section 49-0307(3)(d) establishes a procedure which the State may follow when modifying or extinguishing a conservation easement if the conservation easement can no longer substantially accomplish its original purposes or any of the purposes set forth in ECL section 49-0301. This procedure includes specific notification requirements and a non-adjudicatory public hearing to provide the public with an opportunity to be heard.

DEC is also empowered in ECL section 3-0301(2)(v) to administer and manage the real property under the jurisdiction of the Department for the purpose of preserving, protecting and enhancing the natural resource value for which the property was acquired or to which it is dedicated, employing all appropriate management activities. In conjunction with this broad authority, ECL section 3-0301(2)(m) empowers DEC to "[a]dopt such rules, regulations and procedures as may be necessary, convenient or desirable to effectuate the purposes of [the ECL]."

2. Legislative objectives:

This regulation is compatible with the public policy objectives the Legislature sought to advance when enacting the statutory authority by providing standards and procedures which the Department will implement when modifying or extinguishing DEC conservation easements pursuant to the authority set forth in ECL section 49-0307 and pursuant to the general powers granted to the Commissioner in ECL section 3-0301.

3. Needs and benefits:

Conservation easements are legal agreements between a landowner (grantor) and an organization (grantee), such as a government entity or non-profit organization that restricts future activities on the land to protect its conservation values. Essentially, both under common law and ECL article 49, a conservation easement is in part a contract and in part a real estate interest in land. A conservation easement is negotiated by the parties based upon information and known science and technology available to the parties at the time of the grant. The parties agree to a division of the rights associated with real property ownership by identifying restricted uses of the property, rights reserved by the landowner, or rights, often referred to as "affirmative rights," which are granted to the grantee to use the property for its own purposes, such as the right to provide public recreational opportunities on the property. The grantee also has the right and obligation to monitor the property and enforce the conservation easement.

Title 3 of Article 49 of the ECL is the statutory authority recognizing the validity of conservation easements in New York State. It limits the holder of a conservation easement to public bodies and not-for-profit conservation organizations. Additionally, it also limits the purpose of a conservation easement to specified conservation purposes which benefits the public. Generally, the identified statutory purposes include: preserving natural, scenic or open-space values of real property; protecting natural resources; maintaining or enhancing the quality of the air or water quality; preserving architectural, archaeological or cultural aspects of real property; and assuring the property's availability for agricultural, forest, recreational or open space use.

Furthermore, ECL article 49 established certain defenses against a challenge to the validity of a conservation easement created pursuant to ECL article 49 that was not available under common law. Finally, ECL section 49-0307 provides the parties to a conservation easement with procedures to follow when modifying or extinguishing a conservation easement. Several of the options cited in ECL section 49-0307 which are available to the parties when seeking to modify or extinguish a conservation easement rely on other laws which include some form of public participation such as Eminent Domain Procedure Law, Real Property Actions and Proceedings Law or Public Service Law. However, two other provisions which the Department may rely on, specifically ECL sections 49-0307(2)(a) and 49-0307(3)(a), authorize the modification or extinguishment of a conservation easement "as provided in the instrument creating the easement", but do not specifically mandate a process to provide the public with an opportunity to participate in the modification or extinguishment of a conservation easement. Since these provisions do not include a specific procedure for public participation, this regulation is necessary to provide standards and a procedure for the department to utilize when modifying or extinguishing a DEC conservation easement.

The idea that a landowner can convey certain rights on his or her land while retaining other rights is rooted in hundreds of years of English common law, on which the U.S. legal system is based. Conservation easements, however, are a more recent creation. As early as 1963, the Department acquired its first conservation easement. At present, the Department holds nearly 900,000 acres of land encumbered by conservation easements including both common law conservation easements and those created pursuant to ECL article 49 ("DEC conservation easements"). A majority of the acreage subject to DEC conservation easements are known as "working forest conservation easements" located in the Adirondack and Tug Hill regions. These types of conservation easements evolved over time to provide for economic utilization of the land as well as permanent conservation. A working forest conservation easement protects not only the open space values of the property, such as wildlife habitat, water quality, and recreational access, but also the economic and community benefits that arise from the continued use of the land for forest production of goods and services. The Department has also acquired approximately 50,000 acres of conservation easements which restrict development of the respective properties, and 1,000 acres of conservation easements which promote the protection of scenic views and vistas. Many of these conservation easements, known as scenic easements, are agreements which restrict the development of small parcels of land located along the entrance or exit ramps to State-owned highways. Due to the large volume of acreage subject to DEC conservation easements, and the ongoing need to address changing conditions, natural disasters, new information not available when the conservation easement was drafted; development of new technologies; or new understandings in conservation science, the Department is anticipating an increase to the number of requests to modify DEC conservation easements in the future.

The modification of an existing DEC conservation easement may lead to greater opportunities for public recreational activities that will also serve to promote the original purposes of the DEC conservation easement. Since ECL article 49 was first enacted in 1985, the Department has modified four DEC conservation easements in accordance with the authority set forth in ECL section 49-0307. Two of these modifications were completed primarily to provide the public with additional recreational opportunities, such as the establishment of additional campsites on the property or the right to provide the public with access to the property to ice fish. The Department has also modified two other DEC conservation easements to further limit the permissible uses of the property by the landowner such as requiring the use of sustainable forestry practices on the property or to restrict the subdivision of the property from four (4) lots to only two (2) lots.

The Department has never, and is not proposing to extinguish a DEC conservation easement, or to modify the purposes of a DEC conservation easement, however, in the event that extenuating circumstances in the future may cause the Department to modify the purposes of, or extinguish, a DEC conservation easement, this regulation will establish standards and procedures for public notification and a non-adjudicatory public hearing in order to provide the public with an opportunity to be heard.
This new regulation is necessary to provide the public with specific standards, notification and a process for public participation which the Department will utilize when seeking to modify or extinguish a DEC conservation easement in accordance with common law principles or the authority provided in ECL sections 49-0307(2)(a), 49-0307(3)(a) or 49-0307(3)(d). The public will benefit from this regulation since it provides the public with notification and an opportunity to participate in the process and will result in an improved conservation easement program.
The Department has conducted public outreach to gain insight from those who own land encumbered by a DEC conservation easement. A letter was distributed to affected parties explaining the intent of the proposed regulation. The distribution list included landowners whose land is encumbered by a DEC conservation easement, timber industry representatives, utility companies, non-profit organizations and environmental groups. In response to this outreach, only one inquiry was received from an affected party, but the inquiry requested the status of the proposed rulemaking and did not contain any substantive comments.

4. Costs:

There will be no costs projected for State or local governments or to private regulated persons as a result of this rulemaking, except for the nominal costs to the Department associated with the requirements for notification.

5. Local government mandate:

This regulation will not impose any program, service, duty or responsibility upon any county, city, town, village, school district or fire district other than the recording of the instrument modifying or extinguishing a DEC conservation in the county clerk's office in the county where the property subject to the conservation easement is located.

6. Paperwork:

The proposed regulation will not impose any reporting requirements or other paperwork on any private or public entity.

7. Duplication:

There are no relevant rules, statutes or other legal requirements of the State or Federal government that duplicate, overlap or conflict with this regulation.

8. Alternative approaches:

The alternative of no action was considered, but will not accomplish the purpose of this regulation to provide for standards, notification and public involvement of the process to modify or extinguish a DEC conservation easement. If the no action alternative is selected, DEC conservation easements may be amended in a manner consistent with existing State law, and public participation and involvement would be limited to those opportunities already available to the public in relation to the Department's land acquisition process.

9. Federal standard:

There is no federal standard for the modification or extinguishment of a State-owned conservation easement.

10. Compliance schedule:

The proposed regulation would be effective upon Notice of Adoption in the State Register. There is no time period required for regulated persons to achieve compliance with this regulation. The Department will educate the public about the regulation through information posted on the Department's web site.