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.