49-158

49-158. Restrictions on property use;
enforcement of engineering and institutional controls

A. Notwithstanding any other provisions of this title, if a remedial action,
remediation or corrective action performed pursuant to this title or a response action
performed pursuant to CERCLA as defined in section 49-201 includes an institutional
control or an engineering control and the remedial action, remediation, corrective action
or response action is not subject to section 49-152, the owner of the property on which
the institutional control or engineering control is located, on implementation of the
institutional control or on construction of the engineering control, shall record in each
county where the property is located a restrictive covenant that is labeled "declaration
of environmental use restriction". A person who is conducting a remedial action,
remediation, corrective action or response action that requires an institutional or
engineering control and who is not the owner of the property shall obtain written consent
from the owner before implementing the institutional control or constructing the
engineering control. On implementation of the institutional control or construction of
the engineering control, the owner shall record a declaration of environmental use
restriction in each county where the property is located. If the institutional control or
engineering control will affect right-of-way that is owned, maintained or controlled by a
public entity for public benefit, the person shall also obtain the public entity's
written consent before implementing the institutional control or constructing the
engineering control. The declaration of environmental use restriction shall limit by
legal description the area of the property where the institutional control or engineering
control shall be maintained.

B. When recorded, an owner's declaration of environmental use restriction under
subsection A of this section is a covenant that runs with and burdens the property, binds
the owner and the owner's heirs, successors and assigns and inures to the benefit of the
department and the state. If notice of the declaration of environmental use restriction
that includes a specific description of the area of the property that is subject to the
declaration of environmental use restriction is contained in the repository maintained by
the department pursuant to section 49-152, subsection E, a declaration of environmental
use restriction may not be extinguished, limited or impaired through any of the
following:

1. Issuance of a tax deed.

2. Foreclosure of a tax lien.

3. Foreclosure of any mortgage, deed of trust or other encumbrance or lien on the
property.

4. Adverse possession.

5. Exercise of eminent domain.

6. Application of the doctrine of abandonment, the doctrine of waiver or any other
common law doctrine.

C. Each party to a declaration of environmental use restriction shall incorporate
the terms of the declaration of environmental use restriction into any lease, license or
other agreement that is signed by the party and that grants a right with respect to the
property that is subject to the declaration of environmental use restriction. The
incorporation may be in full or by reference.

D. A declaration of environmental use restriction is sufficient if it contains all
of the following information:

1. A legal description and the address of the area of the property that is subject
to the declaration.

2. The date that remediation, remedial action, corrective action or response action
was completed and a map of the area of the property that is subject to the declaration.

3. A description of the environmental contaminants that were the subject of the
remediation, remedial action, corrective action or response action.

4. A statement that more detailed information is available at the department
including the address at which that information will be maintained.

5. A notarized signature of a department official indicating approval of the
declaration of environmental use restriction.

6. The notarized signature of the owner or owners of the property.

E. If institutional controls are used in addition to the declaration of
environmental use restriction, the declaration of environmental use restriction, in
addition to the information required by subsection D of this section, shall include the
same elements required pursuant to section 49-152, subsection I.

F. If engineering controls are used, the declaration of environmental use
restriction, in addition to the information required by subsection D of this section,
shall include the same elements required pursuant to section 49-152, subsections F
through J and section 49-152.01.

G. When a declaration of environmental use restriction is recorded or modified, an
owner shall pay to the department a fee established by rule. The owner shall follow the
same requirements for institutional controls and engineering controls pursuant to section
49-152, subsection K and section 49-152.01.

H. The department shall provide a copy of the declaration of environmental use
restriction to the local jurisdiction with zoning and development plan approval for the
property. A declaration of environmental use restriction does not authorize a use of
property that is otherwise prohibited by zoning ordinances or other ordinances or laws.
A declaration of environmental use restriction may include activity limitations and use
restrictions that would otherwise be permitted by zoning ordinances or other ordinances
or laws. The receipt of this copy does not create any new obligation or confer additional
powers on the local jurisdiction.

I. The department may enter the property pursuant to section 49-152. The department
may also enforce this section as prescribed by section 49-152.02.

J. The department shall adopt rules as necessary to implement this section.

K. When the department enters on property pursuant to this section to verify that
engineering controls are being maintained, the department shall meet the same
requirements pursuant to section 49-152, subsection N.

L. At the written request of the owner of property that is subject to a declaration
of environmental use restriction recorded pursuant to subsection A of this section, the
director shall determine whether release or modification of the declaration of
environmental use restriction is appropriate. If a release has been requested, the
director shall make this determination within sixty days after the date of the property
owner's request. If the director determines that release of a declaration of
environmental use restriction is appropriate, the director shall record in each county
where the property is located a notice releasing the declaration of environmental use
restriction. Release by the director under this subsection is appropriate if maintenance
of the institutional control or engineering control is no longer necessary to protect
public health and the environment.

M. Nothing in this section shall preclude the department from initiating an action
under other provisions of state or federal law.