Print Friendly SENATE BILL NO. 1255 – Uniform Environmental Covenants Act
SENATE BILL NO. 1255
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S1255................................................by JUDICIARY AND RULES
UNIFORM ENVIRONMENTAL COVENANTS ACT - Adds to existing law to provide for
the Uniform Environmental Covenants Act; to define terms; to set forth the
nature of rights and subordination of interests; to set forth requirements
for the contents of environmental covenants; to provide that qualifying
environmental covenants run with the land; to provide for the validity and
effect of environmental covenants; to provide for the relationship of
environmental covenants to other land use laws; to require notice and
recording; to set forth duration of covenants; to provide for amendment by
court action; to provide for amendment or termination by consent; to
provide for enforcement; to establish a registry; to require notice; to
provide for uniformity of application and construction; to provide for
relation to other acts; and to provide for severability.
01/16 Senate intro - 1st rdg - to printing
01/17 Rpt prt - to Jud
01/26 Rpt out - rec d/p - to 2nd rdg
01/27 2nd rdg - to 3rd rdg
01/31 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough,
Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce,
Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsors - Davis & Kelly
Title apvd - to House
01/31 House intro - 1st rdg - to Jud
02/03 Rpt out - Ref'd to Env
02/16 Rpt out - rec d/p - to 2nd rdg
02/17 2nd rdg - to 3rd rdg
02/22 3rd rdg - PASSED - 69-0-1
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford,
Cannon, Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson,
Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart, Harwood,
Henbest, Henderson, Jaquet, Kemp, Lake, LeFavour, Loertscher,
Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle,
Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo,
Roberts, Rusche, Rydalch, Sali(Sali), Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Skippen, Smith(30), Smylie(Luker), Snodgrass,
Stevenson, Trail, Wills, Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Smith(24)
Floor Sponsor - Bastian
Title apvd - to Senate
02/23 To enrol
02/24 Rpt enrol - Pres signed
02/27 Sp signed
02/28 To Governor
03/02 Governor signed
Session Law Chapter 15
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE SENATE
SENATE BILL NO. 1255
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO THE UNIFORM ENVIRONMENTAL COVENANTS ACT; AMENDING TITLE 55, IDAHO
3 CODE, BY THE ADDITION OF A NEW CHAPTER 30, TITLE 55, IDAHO CODE, TO PRO-
4 VIDE A SHORT TITLE, TO DEFINE TERMS, TO SET FORTH THE NATURE OF RIGHTS AND
5 SUBORDINATION OF INTERESTS, TO SET FORTH REQUIREMENTS FOR THE CONTENTS OF
6 ENVIRONMENTAL COVENANTS, TO PROVIDE THAT QUALIFYING ENVIRONMENTAL COVE-
7 NANTS RUN WITH THE LAND, TO PROVIDE FOR VALIDITY AND EFFECT OF ENVIRONMEN-
8 TAL COVENANTS, TO PROVIDE FOR THE RELATIONSHIP OF ENVIRONMENTAL COVENANTS
9 TO OTHER LAND USE LAWS, TO REQUIRE NOTICE AND RECORDING, TO SET FORTH
10 DURATION OF COVENANTS, TO PROVIDE FOR AMENDMENT BY COURT ACTION, TO PRO-
11 VIDE FOR AMENDMENT OR TERMINATION BY CONSENT, TO PROVIDE FOR ENFORCEMENT,
12 TO ESTABLISH A REGISTRY AND TO REQUIRE NOTICE, TO PROVIDE FOR UNIFORMITY
13 OF APPLICATION AND CONSTRUCTION, TO PROVIDE FOR RELATION TO THE ELECTRONIC
14 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT AND TO PROVIDE FOR SEVER-
16 Be It Enacted by the Legislature of the State of Idaho:
17 SECTION 1. That Title 55, Idaho Code, be, and the same is hereby amended
18 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
19 ter 30, Title 55, Idaho Code, and to read as follows:
20 CHAPTER 30
21 UNIFORM ENVIRONMENTAL COVENANTS ACT
22 55-3001. SHORT TITLE. This chapter shall be known and may be cited as the
23 "Uniform Environmental Covenants Act."
24 55-3002. DEFINITIONS. As used in this chapter:
25 (1) "Activity and use limitations" means restrictions or obligations cre-
26 ated under this chapter with respect to real property.
27 (2) "Agency" means the Idaho department of environmental quality or any
28 other state or federal agency that determines or approves the environmental
29 response project pursuant to which the environmental covenant is created.
30 (3) "Common interest community" means a condominium, cooperative, or
31 other real property with respect to which a person, by virtue of the person's
32 ownership of a parcel of real property, is obligated to pay property taxes or
33 insurance premiums, or for maintenance, or improvement of other real property
34 described in a recorded covenant that creates the common interest community.
35 (4) "Environmental covenant" means a servitude arising under an environ-
36 mental response project that imposes activity and use limitations.
37 (5) "Environmental response project" means a plan or work performed for
38 environmental remediation of real property and conducted:
39 (a) Under a federal or state program governing environmental remediation
40 of real property;
41 (b) Incident to closure of a solid or hazardous waste management unit, if
1 the closure is conducted with approval of an agency; or
2 (c) Under an authorized state voluntary cleanup program.
3 (6) "Holder" means the grantee of an environmental covenant as specified
4 in section 55-3003(1), Idaho Code.
5 (7) "Person" means an individual, corporation, business trust, estate,
6 trust, partnership, limited liability company, association, joint venture,
7 public corporation, government, governmental subdivision, agency, or instru-
8 mentality, or any other legal or commercial entity.
9 (8) "Record," used as a noun, means information that is inscribed on a
10 tangible medium or that is stored in an electronic or other medium and is
11 retrievable in perceivable form.
12 (9) "State" means a state of the United States, the District of Columbia,
13 Puerto Rico, the United States Virgin Islands, or any territory or insular
14 possession subject to the jurisdiction of the United States.
15 55-3003. NATURE OF RIGHTS -- SUBORDINATION OF INTERESTS. (1) Any person,
16 including a person that owns an interest in the real property, the agency, or
17 a municipality or other unit of local government, may be a holder. An environ-
18 mental covenant may identify more than one (1) holder. The interest of a
19 holder is an interest in real property.
20 (2) A right of an agency under this chapter or under an environmental
21 covenant, other than a right as a holder, is not an interest in real property.
22 (3) An agency is bound by any obligation it assumes in an environmental
23 covenant, but an agency does not assume obligations merely by signing an envi-
24 ronmental covenant. Any other person that signs an environmental covenant is
25 bound by the obligations the person assumes in the covenant, but signing the
26 covenant does not change obligations, rights, or protections granted or
27 imposed under law other than this chapter except as provided in the covenant.
28 (4) The following rules apply to interests in real property in existence
29 at the time an environmental covenant is created or amended:
30 (a) An interest that has priority under other law is not affected by an
31 environmental covenant unless the person that owns the interest subordi-
32 nates that interest to the covenant.
33 (b) This chapter does not require a person that owns a prior interest to
34 subordinate that interest to an environmental covenant or to agree to be
35 bound by the covenant.
36 (c) A subordination agreement may be contained in an environmental cove-
37 nant covering real property or in a separate record. If the environmental
38 covenant covers commonly owned property in a common interest community,
39 the record may be signed by any person authorized by the governing board
40 of the owners' association.
41 (d) An agreement by a person to subordinate a prior interest to an envi-
42 ronmental covenant affects the priority of that person's interest but does
43 not by itself impose any affirmative obligation on the person with respect
44 to the environmental covenant.
45 55-3004. CONTENTS OF ENVIRONMENTAL COVENANT. (1) An environmental cove-
46 nant must:
47 (a) State that the instrument is an environmental covenant executed pur-
48 suant to this chapter;
49 (b) Contain a legally sufficient description of the real property subject
50 to the covenant;
51 (c) Describe the activity and use limitations on the real property;
52 (d) Identify every holder;
53 (e) Be signed by the agency, every holder, and unless waived by the
1 agency every owner of the fee simple of the real property subject to the
2 covenant; and
3 (f) Identify the name and location of any administrative record for the
4 environmental response project reflected in the environmental covenant.
5 (2) In addition to the information required by subsection (1) of this
6 section, an environmental covenant may contain other information, restric-
7 tions, and requirements agreed to by the persons who signed it, including any:
8 (a) Requirements for notice following transfer of a specified interest
9 in, or concerning proposed changes in use of, applications for building
10 permits for, or proposals for any site work affecting the contamination
11 on, the property subject to the covenant;
12 (b) Requirements for periodic reporting describing compliance with the
14 (c) Rights of access to the property granted in connection with implemen-
15 tation or enforcement of the covenant;
16 (d) A brief narrative description of the contamination and remedy,
17 including the contaminants of concern, the pathways of exposure, limits on
18 exposure, and the location and extent of the contamination;
19 (e) Limitation on amendment or termination of the covenant in addition to
20 those contained in sections 55-3009 and 55-3010, Idaho Code; and
21 (f) Rights of the holder in addition to its right to enforce the covenant
22 pursuant to section 55-3011, Idaho Code.
23 (3) In addition to other conditions for its approval of an environmental
24 covenant, the agency may require those persons specified by the agency who
25 have interests in the real property to sign the covenant.
26 55-3005. VALIDITY -- EFFECT ON OTHER INSTRUMENTS. (1) An environmental
27 covenant that complies with this chapter runs with the land.
28 (2) An environmental covenant that is otherwise effective is valid and
29 enforceable even if:
30 (a) It is not appurtenant to an interest in real property;
31 (b) It can be or has been assigned to a person other than the original
33 (c) It is not of a character that has been recognized traditionally at
34 common law;
35 (d) It imposes a negative burden;
36 (e) It imposes an affirmative obligation on a person having an interest
37 in the real property or on the holder;
38 (f) The benefit or burden does not touch or concern real property;
39 (g) There is no privity of estate or contract;
40 (h) The holder dies, ceases to exist, resigns, or is replaced; or
41 (i) The owner of an interest subject to the environmental covenant and
42 the holder are the same person.
43 (3) An instrument that creates restrictions or obligations with respect
44 to real property that would qualify as activity and use limitations except for
45 the fact that the instrument was recorded before July 1, 2006, is not invalid
46 or unenforceable because of any of the limitations on enforcement of interests
47 described in subsection (2) of this section or because it was identified as an
48 easement, servitude, deed restriction, or other interest. This chapter does
49 not apply in any other respect to such an instrument.
50 (4) This chapter does not invalidate or render unenforceable any inter-
51 est, whether designated as an environmental covenant or other interest, that
52 is otherwise enforceable under the law of this state.
53 55-3006. RELATIONSHIP TO OTHER LAND USE LAW. This chapter does not au-
1 thorize a use of real property that is otherwise prohibited by zoning, by law
2 other than this chapter regulating use of real property, or by a recorded
3 instrument that has priority over the environmental covenant. An environmental
4 covenant may prohibit or restrict uses of real property which are authorized
5 by zoning or by law other than this chapter.
6 55-3007. NOTICE. (1) A copy of an environmental covenant shall be pro-
7 vided by the persons and in the manner required by the agency to:
8 (a) Each person that signed the covenant;
9 (b) Each person holding a recorded interest in the real property subject
10 to the covenant;
11 (c) Each person in possession of the real property subject to the cove-
13 (d) Each municipality or other unit of local government in which real
14 property subject to the covenant is located; and
15 (e) Any other person the agency requires.
16 (2) The validity of a covenant is not affected by failure to provide a
17 copy of the covenant as required under this section.
18 55-3008. RECORDING. (1) An environmental covenant and any amendment or
19 termination of the covenant must be recorded in every county in which any por-
20 tion of the real property subject to the covenant is located. For purposes of
21 indexing, a holder shall be treated as a grantee.
22 (2) Except as otherwise provided in section 55-3009(3), Idaho Code, an
23 environmental covenant is subject to the laws of this state governing record-
24 ing and priority of interests in real property.
25 55-3009. DURATION -- AMENDMENT BY COURT ACTION. (1) An environmental cov-
26 enant is perpetual unless it is:
27 (a) By its terms limited to a specific duration or terminated by the
28 occurrence of a specific event;
29 (b) Terminated by consent pursuant to section 55-3010, Idaho Code;
30 (c) Terminated pursuant to subsection (2) of this section;
31 (d) Terminated by foreclosure of an interest that has priority over the
32 environmental covenant; or
33 (e) Terminated or modified in an eminent domain proceeding, but only if:
34 (i) The agency that signed the covenant is a party to the proceed-
36 (ii) All persons identified in section 55-3010(1) and (2), Idaho
37 Code, are given notice of the pendency of the proceeding; and
38 (iii) The court determines, after hearing, that the termination or
39 modification will not adversely affect human health or the environ-
41 (2) If the agency that signed an environmental covenant has determined
42 that the intended benefits of the covenant can no longer be realized, a court,
43 under the doctrine of changed circumstances, in an action in which all persons
44 identified in section 55-3010(1) and (2), Idaho Code, have been given notice,
45 may terminate the covenant or reduce its burden on the real property subject
46 to the covenant. The agency's determination or its failure to make a determi-
47 nation upon request is subject to review pursuant to the Idaho administrative
48 procedure act, chapter 52, title 67, Idaho Code.
49 (3) Except as otherwise provided in subsections (1) and (2) of this sec-
50 tion, an environmental covenant may not be extinguished, limited, or impaired
51 through issuance of a tax deed, foreclosure of a tax lien, or application of
52 the doctrine of adverse possession, prescription, abandonment, waiver, lack of
1 enforcement, or acquiescence, or a similar doctrine.
2 55-3010. AMENDMENT OR TERMINATION BY CONSENT. (1) An environmental cove-
3 nant may be amended or terminated by consent only if the amendment or termina-
4 tion is signed by:
5 (a) The agency;
6 (b) Unless waived by the agency, the current owner of the fee simple of
7 the real property subject to the covenant;
8 (c) Each person that originally signed the covenant, unless the person
9 waived in a signed record the right to consent or a court finds that the
10 person no longer exists or cannot be located or identified with the exer-
11 cise of reasonable diligence; and
12 (d) Except as otherwise provided in subsection (4)(b) of this section,
13 the holder.
14 (2) If an interest in real property is subject to an environmental cove-
15 nant, the interest is not affected by an amendment of the covenant unless the
16 current owner of the interest consents to the amendment or has waived in a
17 signed record the right to consent to amendments.
18 (3) Except for an assignment undertaken pursuant to a governmental reor-
19 ganization, assignment of an environmental covenant to a new holder is an
21 (4) Except as otherwise provided in an environmental covenant:
22 (a) A holder may not assign its interest without consent of the other
24 (b) A holder may be removed and replaced by agreement of the other par-
25 ties specified in subsection (1) of this section; and
26 (c) A court of competent jurisdiction may fill a vacancy in the position
27 of holder.
28 55-3011. ENFORCEMENT OF ENVIRONMENTAL COVENANT. (1) A civil action for
29 injunctive or other equitable relief for violation of an environmental cove-
30 nant may be maintained by:
31 (a) A party to the covenant;
32 (b) The agency or, if it is not the agency, the Idaho department of envi-
33 ronmental quality;
34 (c) Any person to whom the covenant expressly grants power to enforce;
35 (d) A person whose interest in the real property or whose collateral or
36 liability may be affected by the alleged violation of the covenant; or
37 (e) A municipality or other unit of local government in which the real
38 property subject to the covenant is located.
39 (2) This chapter does not limit the regulatory authority of the agency or
40 the Idaho department of environmental quality under law other than this chap-
41 ter with respect to an environmental response project.
42 (3) A person is not responsible for or subject to liability for environ-
43 mental remediation solely because it has the right to enforce an environmental
45 55-3012. REGISTRY -- SUBSTITUTE NOTICE. (1) The Idaho department of envi-
46 ronmental quality shall establish and maintain a registry that contains all
47 environmental covenants and any amendment or termination of those covenants.
48 The registry may also contain any other information concerning environmental
49 covenants and the real property subject to them which the department of envi-
50 ronmental quality considers appropriate. The registry is a public record.
51 (2) After an environmental covenant or an amendment or termination of a
52 covenant is filed in the registry established and maintained pursuant to sub-
1 section (1) of this section, a notice of the covenant, amendment, or termina-
2 tion that complies with this section may be recorded in the land records in
3 lieu of recording the entire covenant. Any such notice must contain:
4 (a) A legally sufficient description and any available street address of
5 the real property subject to the covenant;
6 (b) The name and address of the owner of the fee simple interest in the
7 real property, the agency, and the holder if other than the agency;
8 (c) A statement that the covenant, amendment, or termination is available
9 in a registry at the department of environmental quality, which discloses
10 the method of any electronic access; and
11 (d) A statement that the notice is notification of an environmental cove-
12 nant executed pursuant to this chapter.
13 (3) A statement in substantially the following form, executed with the
14 same formalities as a deed in this state, satisfies the requirements of sub-
15 section (2) of this section:
16 "1. This notice is filed in the land records of the (political subdivi-
17 sion) of (insert name of jurisdiction in which the real property is
18 located) pursuant to section 55-3012, Idaho Code.
19 2. This notice and the covenant, amendment or termination to which it
20 refers may impose significant obligations with respect to the property
21 described below.
22 3. A legal description of the property is attached as Exhibit A to this
23 notice. The address of the property that is subject to the environmental
24 covenant is (insert address of property) (not available).
25 4. The name and address of the owner of the fee simple interest in the
26 real property on the date of this notice is (insert name of current owner
27 of the property and the owner's current address as shown on the tax
28 records of the jurisdiction in which the property is located).
29 5. The environmental covenant, amendment or termination was signed by
30 (insert name and address of the agency).
31 6. The environmental covenant, amendment or termination was filed in the
32 registry on (insert date of filing).
33 7. The full text of the covenant, amendment or termination and any other
34 information required by the agency is on file and available for inspection
35 and copying in the registry maintained for that purpose by the Idaho
36 department of environmental quality.".
37 55-3013. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and con-
38 struing this uniform act, consideration must be given to the need to promote
39 uniformity of the law with respect to its subject matter among states that
40 enact it.
41 55-3014. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COM-
42 MERCE ACT. This chapter modifies, limits, or supersedes the federal electronic
43 signatures in global and national commerce act (15 U.S.C. section 7001 et
44 seq.) but does not modify, limit, or supersede section 101 of that act (15
45 U.S.C. section 7001(a)) or authorize electronic delivery of any of the notices
46 described in section 103 of that act (15 U.S.C. section 7003(b)).
47 55-3015. SEVERABILITY. The provisions of this chapter are hereby declared
48 to be severable and if any provision of this chapter or the application of
49 such provision to any person or circumstance is declared invalid for any rea-
50 son, such declaration shall not affect the validity of the remaining portions
51 of this chapter.
STATEMENT OF PURPOSE
The Uniform Environmental Covenants Act deals with the future use
of contaminated real estate or brownfields. The act provides
clear rules for a perpetual real estate interest - an
environmental covenant - to regulate the use of brownfields when
real estate is transferred from one owner to another.
There will be no impact on the state's general fund.
Name: Senator Bart Davis
Dale G. Higer
STATEMENT OF PURPOSE/FISCAL NOTE S 1255