Environmental Covenant and Easement

Drafts a recordable, perpetual environmental covenant and easement restricting land use to protect public health following contamination, remediation, or regulatory settlement.

Prerequisites

Property records — legal description, tax parcel number, deed, title report
Environmental reports — Phase I/II ESAs, remediation action plans, site investigation reports
Regulatory instruments — consent decrees, administrative orders, voluntary cleanup agreements, agency correspondence specifying required institutional controls
Parties — grantor (with authority to encumber) and grantee (agency or authorized holder with statutory authority under UECA or state law)
Contamination specifics — hazardous substances, remedial measures completed, ongoing monitoring, engineered controls

Output Structure

1. Parties

| Role | Description | |------|-------------| | Grantor | Property owner conveying restrictions; confirm authority to encumber | | Grantee | Environmental agency or authorized holder under UECA or state law | | Additional | Subordinating lienholders, oversight agencies, third-party beneficiaries |

Include full legal names, addresses, and official capacities.

2. Recitals

Legal description with parcel number and recording info
Nature and extent of contamination
Remediation summary and ongoing obligations
Triggering regulatory action (EPA order, state cleanup agreement, CERCLA/RCRA program)
Public health purpose and statutory authority (UECA, CERCLA § 120(h) if applicable)

3. Definitions

Define: Property, Restricted Activities, Contamination, Remedial Action, Institutional Controls, Environmental Agency, and site-specific terms. Align with UECA definitions and underlying regulatory documents.

4. Grant of Covenant and Easement

Prohibited Activities (enumerate with specificity):

Residential use or occupancy
Potable groundwater well installation
Excavation or soil disturbance below [specified depth] without agency approval
Activities disturbing remedial systems, monitoring wells, or engineered caps/barriers
Any use increasing exposure to contaminated media

Affirmative Obligations:

Maintain caps and engineered barriers
Conduct groundwater monitoring per agency schedule
Submit annual compliance reports
Provide agency inspection access
Notify agency before transfer or use change

Run-with-the-land clause — binds grantor, successors, assigns, lessees, and all future occupants.

Easement grant — grantee access to inspect, monitor, maintain remedial systems, and enforce terms.

5. Duration and Termination

Perpetual unless agency issues formal written release
Termination path: owner petition → evidence of remediation to unrestricted-use standards → agency written approval → UECA-compliant procedure
No modification or release without written agency consent
Covenant takes priority over subsequently recorded interests; existing lienholders must subordinate

6. Enforcement and Remedies

Agency right of entry for inspection, monitoring, verification
Violations enforceable via injunctive relief, specific performance, civil penalties, cost recovery, attorneys' fees
Agency may perform corrective actions on owner default; costs recoverable
Preserves independent agency enforcement under environmental statutes
Express third-party beneficiary rights for regulatory agencies

7. Miscellaneous

Notices — certified mail; addresses for all parties
Governing law — state where property is located
Severability and amendment (written consent of all parties + UECA procedure)
Recording — grantor must record in county land records and provide proof to grantee

8. Execution Block

Signature lines (name, title, date) for all parties
Agency acceptance block
Notarial acknowledgments per state recording requirements [VERIFY corporate seal, witness, specific notarial language]

Exhibits

[ ] Legal description of property
[ ] Survey or map showing restricted areas and contaminated zones
[ ] Referenced environmental reports or regulatory documents

Pitfalls and Checks

[VERIFY] whether the state has adopted UECA; non-adopting states require common law easement or state-specific institutional control statutes
[VERIFY] CERCLA § 120(h) applicability for federal facility transfers
[VERIFY] RCRA postclosure permit conditions requiring covenants
Obtain subordination agreements from all existing lienholders before execution
Failure to record defeats constructive notice — confirm county-specific recording requirements
Never omit: run-with-the-land clause, agency termination consent, or access easement — these are core enforceability elements
Flag all site-specific depth thresholds, monitoring frequencies, and restricted activity lists for attorney and agency review