Conservation Easement instructions for New York & New Jersey
As a condition of its Rivers and Harbors Act and Clean Water Act permits, the New York District may require that areas subject to Corps jurisdiction, including areas on which compensatory mitigation will be performed and buffer zones, will be perpetually preserved for conservation purposes. Copies of conservation easements used by the District for this purpose are attached. To conform to New Jersey law, the document used in that state is called a “Grant of Conservation Restriction/Easement”.
New York Model Conservation Easement
New Jersey Model Conservation Easement
The property owner who signs a conservation easement conveys a partial interest in the property to a “Holder”, who thereafter has the right and obligation to enforce the restrictions on use of the land set forth in the easement. Under New York law, the Holder must be either a public body or not-for profit conservation organization. Under New Jersey law, the Holder may be the state Commissioner of Environmental Protection, a local government unit or a charitable conservancy. New Jersey Easements generally identify the Department of Environmental Protection as Holder.
In New York, the District’s experience is that easement Holders are typically local government agencies. It is also common that Holders may charge a landowner a fee to compensate for the Holder’s expenses in performing its duties.
So that the conveyed property can be clearly identified, the attached easements require inclusion of a metes-and-bounds description and a map or drawing. The property must also be marked on the ground.
Note that the New York Easement states a requirement that the granting landowner certify that there are no mortgages, leases or other easements that would conflict with the easement being signed. The New Jersey document does not state such a requirement, but the landowner will be required to make such a certification as a condition of the District’s permit. The New York Easement (or a New Jersey permit condition) will also restrict use of vehicles on the conveyed property.
The New York Easement, or a New Jersey permit condition, also directs that the landowner certify that there are no structures, to include roads, on the conveyed property. The presence of structures does not automatically render a property ineligible for an easement, but the language of the easement will have to be modified to account for structure maintenance.
If a New York District permit applicant is having difficulty identifying a prospective easement Holder, the applicant is advised to consult with the assigned New York District Project Manager. If a written explanation is provided, explaining why a land transfer or conservation easement cannot be used, an applicant may be permitted to propose a deed restriction in accordance with theNew York Model Deed Restriction.