Procedures for Modifying or Extinguishing a Conservation Easement Held by the NYS Department of...
NY-ADR
12/21/16 N.Y. St. Reg. ENV-52-15-00010-A
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 51
December 21, 2016
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-52-15-00010-A
Filing No. 1108
Filing Date. Dec. 05, 2016
Effective Date. Dec. 21, 2016
Procedures for Modifying or Extinguishing a Conservation Easement Held by the NYS Department of Environmental Conservation
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 592 to Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 3-0301(2)(m), (v), 49-0301, 49-0303(1), 49-0305(7), 49-0307(2), (2)(a), (3), (3)(a) and (d)
Subject:
Procedures for modifying or extinguishing a conservation easement held by the NYS Department of Environmental Conservation.
Purpose:
Establish standards for the Department of Environmental Conservation to follow when modifying or extinguishing a CE and provide for a formal public review process.
Text of final rule:
A new 6 NYCRR Part 592 is added to Subchapter D (formerly Subchapter C) of Chapter V, Real Property and Land Acquisition, to read as follows:
6 NYCRR Part 592
Procedure for the modification or extinguishment of a conservation easement held by the New York State Department of Environmental Conservation
Section 592.1 Purpose and applicability
(a) The purpose of this Part is to set forth in regulation a procedure to be followed by the department when modifying or extinguishing a DEC conservation easement, as that term is defined in section 592.2(c) below.
(b) This Part will not apply to conservation easements which are owned or held by not-for-profit organizations or public bodies other than the department.
Section 592.2 Definitions
(a) “Commissioner” means the Commissioner of the New York State Department of Environmental Conservation, or the Commissioner’s designated agent.
(b) “Department” or “DEC” means the New York State Department of Environmental Conservation.
(c) “Conservation easement” means an easement, covenant, restriction or other interest in real property, created under and subject to the provisions of Title 3 of article 49 of the Environmental Conservation Law 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 of the Environmental Conservation Law, provided that no such easement shall be acquired or held by the state which is subject to the provisions of Article XIV of the State Constitution.
(d) “ECL” means the New York State Environmental Conservation Law.
(e) “Environmental Notice Bulletin” or “ENB” means the weekly publication of the department that is published pursuant to section 3-0306 of the Environmental Conservation Law, and accessible on the department's website.
(f) “Grantee” means the department, as owner and holder of a DEC conservation easement.
(g) “Grantor” means the person or entity which is the owner of the underlying fee lands subject to the DEC conservation easement at the time of the grant of the DEC conservation easement or, as applicable, the grantor’s respective successors, heirs and assigns.
(h) “Modification” means a change, addition, deletion, correction or amendment to a DEC conservation easement.
(i) “Property” means the underlying fee lands subject to the DEC conservation easement.
(j) “Purpose(s)” means the conservation objectives and goals set forth in the express language of a DEC conservation easement, or in the absence of such express language, as provided in ECL section 49-0303(1).
(k) “Third party enforcement right” means a right which may be granted in a DEC conservation easement which empowers a public body or a not-for-profit conservation organization which is not a holder of the DEC conservation easement to enforce any of the terms of the DEC conservation easement.
Section 592.3 Standards.
(a) The standards for the modification of a DEC conservation easement include:
1. A modification of a DEC conservation easement, other than a modification to the stated purpose(s) as set forth in a DEC conservation easement, must not alter, and must be consistent with, the stated purpose(s) of the DEC conservation easement; and
2. A modification of a DEC conservation easement must not affect the perpetual nature of the DEC conservation easement; and
3. The modification must comply with all existing policies, laws or regulations, including the specific requirements of the provisions of ECL section 49-0307, in effect at the time of the modification; and
4. The proposed modification of a DEC conservation easement shall result in a net conservation benefit to the state, which must be calculated and considered within the spatial confines of the conservation easement in question or in the surrounding contiguous and adjoining lands, as determined by the department, after public comment, including consideration of any change in the level of public recreational opportunities or any change to the limitations or restrictions on the development, management or use of the property, or any other real property owned by or under the control of the grantor, for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the area where the property is located in a manner consistent with the public policy and purpose set forth in ECL section 49-0301.
(b) The standard for the modification of the purpose(s) or the extinguishment of a DEC conservation easement shall require a finding by the department that: the proposed new or modified purpose(s) enhance the original purpose(s) of the DEC conservation easement; or the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in the ECL section 49-0301 which include conserving, preserving and protecting its environmental assets and natural and man-made resources, the preservation of open spaces, the preservation, development and improvement of agricultural and forest lands, the preservation of areas which are significant because of their scenic or natural beauty or wetland, shoreline, geological or ecological character, including old-growth forest, character, and the preservation of areas which are significant because of their historical archaeological, architectural or cultural amenities, and 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 592.4 Procedures
The department must comply with the following procedures for any modification or the extinguishment of a DEC conservation easement.
(a) Written notice to grantor and entities entitled to third party enforcement rights and the Office of the Attorney General. The department must provide written notice of the proposed modification or extinguishment of a DEC conservation easement to the grantor, entities designated in the DEC conservation easement as having third party enforcement rights, and the Office of the Attorney General by certified mail, return receipt requested to the addresses on file with the department for the respective entities; and
(b) Public notice, comment period, non-adjudicatory hearing.
1. Public Notice.
i. For modification only of a DEC conservation easement. The department must publish public notice in the ENB of the department’s intent to modify a DEC conservation easement including a general summary of the proposed modification(s) and the opportunity for the public to submit written public comments to the department. The public comment period shall begin on the date the notice of the public comment period appears in the ENB.
ii. For modification to the purpose(s) or extinguishment of a DEC conservation easement. The department must publish public notice of its intent to modify the purpose(s) or extinguish a DEC conservation easement in the State Register, the ENB and in a newspaper having a general circulation in the county where the property is located. The public notice shall include the facts supporting a finding that: the proposed new or modified purpose(s) enhance the original purpose(s) of the DEC conservation easement; or the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in the ECL section 49-0301.
2. Public comment period. The department must provide for a public comment period for thirty (30) calendar days to accept public comments related to the proposed modification to, or extinguishment of, a DEC conservation easement. The department may provide for the receipt of public comment through the use of meetings, exchanges of written material, or other means during the public comment period.
3. Non-adjudicatory public hearing. For proposals which include the modification of the purpose(s) or extinguishment of a DEC conservation easement, the department must conduct a non-adjudicatory public hearing to be held during the public comment period to provide the public with an opportunity to be heard on the modification of the purpose(s) or the extinguishment of a DEC conservation easement. Notice of the public hearing shall be included in the notice of the proposed modification of the purpose(s) or extinguishment of the conservation easement as set forth in subparagraph ii of paragraph 1 subdivision (b) of this section.
(c) Commissioner’s determination only for modification to the purpose(s) or extinguishment of DEC conservation easement.
1. For any proposed modification to the purpose(s) or the extinguishment of a DEC conservation easement, the Commissioner must make a written determination that the proposed new or modified purpose(s) enhances the original purpose(s) of the DEC conservation easement; or the DEC conservation easement can no longer substantially accomplish its original purposes. The proposed modificaton to the purpose(s) or extinguishment of a DEC conservation easement following closure of the public comment period, shall comply with the requirements of section 592.3 of this Part and be consistent with the policies and objectives set forth in ECL section 49-0301. If a DEC conservation easement is modified or extinguished pursuant to this Part, it shall be set forth in an instrument which complies with the requirements of ECL section 49-0305.
2. The Commissioner will publish a notice of determination in the ENB with a hyperlink to the determination document. The recording of a deed or other conveyance document in the county clerk’s office where the DEC conservation easement is located must be filed no earlier than one hundred twenty (120) calendar days after the notice of the Commissioner’s determination appears in the ENB.
Final rule as compared with last published rule:
Non-substantive changes were made in sections 592.1(b), 592.2(b), (c), 592.3(a)(3), (4), (b), 592.4 introductory paragraph, (a), (b)(1)(i), (ii), (3), (c)(1) and (2).
Text of rule and any required statements and analyses may be obtained from:
James Sessions, NYS DEC, 625 Broadway, Albany, NY 12233, (518) 473-9518, email: [email protected]
Additional matter required by statute:
A EAF/Negative Declaration was prepared in compliance with Article 8 of the Environmental Conservation Law.
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
Non-substantive changes were made to the regulation that did not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
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 & 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.
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