§ 71-3605. Environmental easements; certain common law rules not

applicable.

1. An environmental easement shall be granted by the title owners of
the relevant real estate only by an instrument, that complies with the
requirements of section 5-703 of the general obligations law.

2. The title owners shall furnish to the department abstracts of title
and other documents sufficient to enable the department to determine
that the easements shall be enforceable. An environmental easement shall
be in a form prescribed by the department. An environmental easement
shall describe the property encumbered by the easement by adequate legal
description or by reference to a recorded map showing its boundaries and
bearing the seal and signature of a licensed land surveyor or, if the
easement encumbers the entire property described in a deed of record,
the easement may incorporate by reference the description in such deed,
otherwise it shall refer to the liber and page of the deed or deeds of
the record owner or owners of the real property burdened by the
environmental easement. An environmental easement shall:

(a) name the state, acting through the department, as grantee;

(b) contain a complete description of any use restrictions and/or
engineering control to which the real property is subject;

(c) run with the land, binding the owner of the land and the owner's
successors and assigns;

(d) include an acknowledgment by the commissioner of acceptance of the
easement by the department; and

(e) include an agreement to incorporate, either in full or by
reference, the environmental easement in any leases, licenses, or other
instruments granting a right to use the property that may be affected by
such easement.

3. Until such time as the environmental easement is extinguished, the
property deed and all subsequent instruments of conveyance relating to
the subject property shall state in at least fifteen-point bold-faced
type: "This property is subject to an environmental easement held by the
New York state department of environmental conservation pursuant to
title 36 of article 71 of the environmental conservation law."

4. An environmental easement granted pursuant to this title shall be
enforceable in perpetuity. After the recording of the easement, each
instrument transferring an interest in the area affected by the easement
shall include a specific reference to the recorded easement.

5. An environmental easement granted pursuant to this section may be
extinguished or amended only by a release or amendment of the easement
executed by the commissioner and filed with the office of the recording
officer for the county or counties where the land is situated in the
manner prescribed by article nine of the real property law.

6. For any person who intentionally violates an environmental easement
the department may revoke the certificate of completion provided by
section 27-1419 of this chapter as to the relevant real estate.

7. An environmental easement shall be held only by the state, except
that the state shall not be authorized or empowered to acquire or hold
any environmental easement which is subject to the provisions of article
fourteen of the constitution.

8. An environmental easement shall be duly recorded and indexed as
such in the office of the recording officer for the county or counties
where the land is situate in the manner prescribed by article nine of
the real property law. The property deed and all subsequent instruments
of conveyance relating to the property encumbered by the easement shall
reference, by book and page number, the environmental easement. Such
deed and instrument shall also specify that the eligible property is
subject to the restrictions contained in such easement. An instrument
for the purpose of creating, conveying, modifying, or terminating an
environmental easement shall not be effective unless recorded.

9. The department shall include a copy of each environmental easement
in the database created pursuant to section 27-1415 of this chapter and
make such database readily searchable.

10. An environmental easement may be enforced in law or equity by its
grantor, by the state, or any affected local government as defined in
section 71-3603 of this title. Such easement is enforceable against the
owner of the burdened property, any lessees, and any person using the
land. Enforcement shall not be defeated because of any subsequent
adverse possession, laches, estoppel, reversion or waiver. No general
law of the state which operates to defeat the enforcement of any
interest in real property shall operate to defeat the enforcement of any
environmental easement unless such general law expressly states the
intent to defeat the enforcement of such easement or provides for the
exercise of the power of eminent domain. It is not a defense in any
action to enforce an environmental easement that:

(a) it is not appurtenant to an interest in real property;

(b) it is not of a character that has been recognized traditionally at
common law;

(c) it imposes a negative burden;

(d) it imposes affirmative obligations upon the owner of any interest
in the burdened property;

(e) the benefit does not touch or concern real property;

(f) there is no privity of estate or of contract; or

(g) it imposes an unreasonable restraint on alienation.

11. Agents, employees, or other representatives of the state may enter
and inspect the property burdened by an environmental easement in a
reasonable manner and at reasonable times to assure compliance with the
restriction.

12. The department may promulgate regulations establishing standards
and procedures for environmental easements.