NYSDEC Streamlines Environmental Easement Requirements

In a prior post, we discussed common mistakes made by applicants in the New York State Brownfield Cleanup Program (BCP) that can delay issuance of the Certificate of Completion (COC). Many of the errors involved the environmental easement package that must be completed for projects that do  not achieve a Track 1 unrestricted cleanup.

Earlier today, the NYSDEC announced streamlined procedures for the preparation of the environmental easement package for the BCP, State Superfund (SSF), and the Environmental Restoration Program (ERP). Under the revised procedures, a title report and title insurance will no longer be required for most sites and the survey requirements have been simplified.

Changes to Title Requirements

For most sites, NYSDEC will now only require a last owner search to document ownership and authority to create an environment easement.  The NYSDEC may request additional information, including possibly a full title report, when the agency determines that complexities in documenting ownership may substantially cloud title. Examples of properties that may require a full title rReport may include properties that contain “lands under water”; restricted deed transfers such as a Quit Claim deed and multiple party ownership.

When a full title report is required, a title report or an abstract of title must be provided to NYSDEC that identifies the holder of title  and all others with an interest in the property. Every title report or title abstract shall include the following:

  • A Certification Page indicating who has the right to convey or mortgage the property that is subject to the Environmental Easement;
  • Schedule A providing the legal description of the property;
  • Schedule B listing the exceptions to the title or issues which require clearance or amplification before the title company is willing to issue its policy. The attorney preparing the easement package must ensure that the title report includes a copy of every encumbrance that affects title (i.e. mortgages, judgments, easements, leases, subleases, assigned leases); and,
  • A copy of the tax map must be included in the report.

Changes to Survey Map

Among the eased requirements for the survey map, NYSDEC will no longer require an an ALTA survey, other easements will not have to be marked, the survey will not have to be certified to NYSDEC, an existing survey may be used; and the survey showing the environmental easement will no longer have to be filed with  the County Clerk

Note that the survey will have to include the following information:

  • The survey must bear the name, address, telephone number, signature and certification of the professional land surveyor who performed the survey, his or her official seal and registration number, the date the survey was completed, the dates of all of the surveyor’s revisions;
  • The survey boundaries must be drawn to a convenient scale, with that scale clearly indicated. A graphic scale, shown in feet and meters, must be included;
  • The symbols and abbreviations that are used on the survey must be identified by the use of a legend;
  • Diagrams must be accurately presented;
  • The point of beginning of the legal description must be shown;
  • The legal description must be correct;
  • The legal description must state the acreage;
  • If the deed(s) description differs from the measured bearings/angles/distances, both must be indicated on the survey;
  • The survey must show the location of all buildings/monuments/overlaps/encroachments upon the surveyed property with their locations defined by measurement perpendicular to the nearest perimeter boundaries;
  • The survey must depict the location of visible improvements within five feet of each side of boundary lines;
  • The survey must show ponds, lakes, springs, rivers or a natural water boundary bordering on or running through the surveyed property; the survey must measure the location of the natural water boundary and note on the survey the date of the measurement;
    • The survey must correctly depict the environmental easement area with corresponding metes & bounds description and acreage;
    • If the survey consists of more than one sheet, sheets must be numbered and the total number of sheets must be indicated on each sheet;
    • The survey must depict the area affected by engineering controls with corresponding metes and bounds with acreage, measurements with description of the engineering control. For example OU 1, OU 2 or Soil Management Plan Area, Sub-Slab Methane/VOC system, site cap, clean fill, concrete, demarcation layer, area not under environmental control, asphalt or building structures, footprint of future buildings (where known), etc.

The documents required for a complete Environmental Easement package will include the following:

  • Copy of current deed(s);
  • Copy of Tax map;
  • Two original easements and an electronic version submitted to both the project manager and project attorney;
  • Proof of authority to obligate owner of property as set forth in “Verification of ownership of property” on the Easement checklist;
  • Legal description of the easement area in a Department approved electronic form (i.e., Word);
  • Signed Survey, two full size copies and an electronic survey for review to both the project manager and project attorney;
  • A draft Notice to Municipality, with appropriate site-specific provisions;
  • Attorney Checklist with certification signed by attorney and owner.

Attached is a revised environmental easement checklist marked against the old checklist showing the deletions and changes to the environmental easement package requirements.

The NYSDEC announcement of its streamlined environmental rules is available here

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