The NYS DEC will take comments through February 13, 2016 on proposed changes to the Conservation Easement Regulations - NYCRR Part 529. The purpose of the proposed new regulations is to provide standards and a procedure for DEC staff to utilize when modifying or extinguishing a conservation easement administered by the Department. The proposed new standards and procedures are as follows:

  1. a) The standards for the modification of a DEC conservation easement include:
  2. 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
  3. A modification of a DEC conservation easement must not affect the perpetual nature of the DEC conservation easement; and
  4. The modification must comply with all other 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
  5. The proposed modification of a DEC conservation easement shall not result in any net loss of benefits to the state, as determined by the department in its sole discretion, 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 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.

Section 592.4 Procedures

The Department must comply with the following procedures for the modification or the extinguishment of a DEC conservation easement.

(a) Written notice to grantor and entities entitled to third party enforcement rights. The department must provide written notice of the proposed modification or extinguishment of a DEC conservation easement to the grantor and entities designated in the DEC conservation easement as having third party enforcement rights by certified mail, return receipt requested to the address on file with the department for the respective entities; and

(b) Public notice, comment period, non-adjudicatory hearing.

 

  1. Public Notice.
  2. For modification only of 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; or
  3. For modification to the purpose(s) or extinguishment of 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 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 and the date of a non-adjudicatory hearing to be held at least thirty (30) calendar days after the date of the publication.
  4. 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.
  5. 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.

(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 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 consider the following reasons in support of the determination: (1) why the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in ECL section 49-0301, and determine if it should therefore be extinguished or modified; (2) if modified, the proposed modification to the purpose(s) set forth in the DEC conservation easement will 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; and (3) 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 must publish the determination and a summary of the determination in the ENB. 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.

Comments may be sent to:

Jim Sessions, Forester

Division of Lands and Forests

625 Broadway

Albany, NY 12233-4250

ConservationEasements@dec.ny.gov

 

For more information see: http://www.dec.ny.gov/regulations/2359.html