Findings—National uniform legislation.
The legislature finds that the national conference of commissioners on uniform state laws has developed uniform legislation called the uniform environmental covenants act. The act ensures that environmental covenants, recorded use restrictions negotiated in connection with hazardous waste site cleanups, and other environmental response projects are legally valid and enforceable. The uniform environmental covenants act achieves this objective by providing clear statutory standards that override court-made doctrines that do not fit such cleanup and reuse contexts. The legislature further finds that nothing in this chapter will amend or modify any local or state laws that determine when environmental covenants are required, when a particular contaminated site must be cleaned up, or the standards for a cleanup.
Adoption of the uniform environmental covenants act in Washington will provide all participants in a cleanup with greater confidence that environmental covenants and other institutional controls will be effective over the life of the cleanup. This will facilitate cleanups of many sites and assist in the recycling of urban brownfield properties into new economic uses for the benefit of the citizens of Washington.
This chapter adopts most provisions of the uniform legislation while making modifications to integrate the uniform environmental covenants act with Washington's environmental cleanup programs.
This chapter may be cited as the uniform environmental covenants act.
Application—Construction—2007 c 104.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Activity or use limitations" means restrictions or obligations created under this chapter with respect to real property.
(2) "Agency" means either the department of ecology or the United States environmental protection agency, whichever determines or approves the environmental response project pursuant to which the environmental covenant is created.
(3)(a) "Common interest community" means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community.
(b) "Common interest community" includes but is not limited to:
(i) An association of apartment owners as defined in RCW 64.32.010
(ii) A unit owners' association as defined in RCW 64.34.020
and organized under RCW 64.34.300
(iii) A master association as provided in RCW 64.34.276
(iv) A subassociation as provided in RCW 64.34.278
(v) A homeowners' association as defined in RCW 64.38.010
(4) "Environmental covenant" means a servitude arising under an environmental response project that imposes activity or use limitations.
(5) "Environmental response project" means a plan or work performed for environmental remediation of real property and conducted:
(a) Under a federal or state program governing environmental remediation of real property, including chapters 43.21C
, 64.44, 70.95, 70.98, 70.105, 70.105D, 90.48, and 90.52
(b) Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or
(c) Under the state voluntary clean-
up program authorized under chapter 70.105D
(6) "Holder" means the grantee of an environmental covenant as specified in RCW 64.70.030
(7) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(8) "Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(9) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
Interests in real property—Subordination.
(1) Any person, including a person that owns an interest in the real property, the agency, or a municipality or other unit of local government, may be a holder. An environmental covenant may identify more than one holder. The interest of a holder is an interest in real property.
(2) A right of an agency under this chapter or under an environmental covenant, other than a right as a holder, is not an interest in real property.
(3) An agency is bound by any obligation it assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant is bound by the obligations the person assumes in the covenant, but signing the covenant does not change obligations, rights, or protections granted or imposed under law other than this chapter except as provided in the covenant.
(4) The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:
(a) An interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant.
(b) This chapter does not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant.
(c) A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners' association.
(d) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person's interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.
Covenants—Contents—Agency discretion—Local land use consideration.
(1) An environmental covenant must:
(a) State that the instrument is an environmental covenant executed pursuant to this chapter;
(b) Contain a legally sufficient description of the real property subject to the covenant;
(c) Describe with specificity the activity or use limitations on the real property;
(d) Identify every holder;
(e) Be signed by the agency, every holder, and unless waived by the agency every owner of the fee simple of the real property subject to the covenant; and
(f) Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
(2) In addition to the information required by subsection (1) of this section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any:
(a) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
(b) Requirements for periodic reporting describing compliance with the covenant;
(c) Rights of access to the property granted in connection with implementation or enforcement of the covenant;
(d) Narrative descriptions of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
(e) Limitations on amendment or termination of the covenant in addition to those contained in RCW 64.70.090
(f) Rights of the holder in addition to its right to enforce the covenant pursuant to RCW 64.70.110
(g) Other information, restrictions, or requirements required by the agency, including the department of ecology under the authority of chapter 70.105D
(3) In addition to other conditions for its approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property to sign the covenant.
(4) The agency may also require notice and opportunity to comment upon an environmental covenant as part of public participation efforts related to the environmental response project.
(5) The agency shall consult with local land use planning authorities in the development of the land use or activity restrictions in the environmental covenant. The agency shall consider potential redevelopment and revitalization opportunities and obtain information regarding present and proposed land and resource uses, and consider comprehensive land use plan and zoning provisions applicable to the real property to be subject to the environmental covenant.
(1) An environmental covenant that complies with this chapter runs with the land.
(2) An environmental covenant that is otherwise effective is valid and enforceable even if:
(a) It is not appurtenant to an interest in real property;
(b) It can be or has been assigned to a person other than the original holder;
(c) It is not of a character that has been recognized traditionally at common law;
(d) It imposes a negative burden;
(e) It imposes an affirmative obligation on a person having an interest in the real property or on the holder;
(f) The benefit or burden does not touch or concern real property;
(g) There is no privity of estate or contract;
(h) The holder dies, ceases to exist, resigns, or is replaced; or
(i) The owner of an interest subject to the environmental covenant and the holder are the same person.
(3) An instrument that creates restrictions or obligations with respect to real property that would qualify as activity or use limitations except for the fact that the instrument was recorded before July 22, 2007, is not invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (2) of this section or because it was identified as an easement, servitude, deed restriction, or other interest. This chapter does not apply in any other respect to such an instrument.
(4) This chapter does not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.
Use of real property—Chapter application.
This chapter does not authorize a use of real property that is otherwise prohibited by zoning, by law other than this chapter regulating use of real property, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property that are authorized by zoning or by law other than this chapter.
(1) A copy of an environmental covenant shall be provided by the persons and in the manner required by the agency to:
(a) Each person that signed the covenant;
(b) Each person holding a recorded interest in the real property subject to the covenant;
(c) Each person in possession of the real property subject to the covenant at the time the covenant is executed;
(d) Each municipality or other unit of local government in which real property subject to the covenant is located;
(e) The department of ecology; and
(f) Any other person the agency requires.
(2) The validity of an environmental covenant is not affected by failure to provide a copy of the covenant as required under this section.
(3) If the agency has not designated the persons to provide a copy of an environmental covenant, the grantor shall be responsible for providing a copy of an environmental covenant as required under subsection (1) of this section.
Covenants—Recording and priority of interests.
(1) An environmental covenant and any amendment or termination of the covenant must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
(2) Except as otherwise provided in RCW 64.70.090
(3), an environmental covenant is subject to the laws of this state governing recording and priority of interests in real property.
(1) An environmental covenant is perpetual unless it is:
(a) By its terms limited to a specific duration or terminated by the occurrence of a specific event;
(b) Terminated by consent pursuant to RCW 64.70.100
(c) Terminated pursuant to subsection (2) of this section;
(d) Terminated by foreclosure of an interest that has priority over the environmental covenant; or
(e) Terminated or modified in an eminent domain proceeding, but only if:
(i) The agency that signed the covenant is a party to the proceeding;
(ii) All persons identified in RCW 64.70.100
(1) and (2) are given notice of the pendency of the proceeding; and
(iii) The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
(2) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in RCW 64.70.100
(1) and (2) have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant.
(3) Except as otherwise provided in subsections (1) and (2) of this section, an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
(4) An environmental covenant may not be extinguished, limited, or impaired by the extinguishment of a mineral interest under chapter 78.22
Covenant—Amendment or termination by consent.
(1) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by:
(a) The agency;
(b) Unless waived by the agency, the current owner of the fee simple of the real property subject to the covenant;
(c) Each person that originally signed the covenant, unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
(d) Except as otherwise provided in subsection (4)(b) of this section, the holder.
(2) If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
(3) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment.
(4) Except as otherwise provided in an environmental covenant:
(a) A holder may not assign its interest without consent of the other parties;
(b) A holder may be removed and replaced by agreement of the other parties specified in subsection (1) of this section; and
(c) A court of competent jurisdiction may fill a vacancy in the position of holder.
Violations—Civil actions—Regulatory authority under chapter—Liability.
(1) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by:
(a) A party to the covenant;
(b) The agency or, if it is not the agency, the department of ecology;
(c) Any person to whom the covenant expressly grants power to enforce;
(d) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; and
(e) A municipality or other unit of local government in which the real property subject to the covenant is located.
(2) This chapter does not limit the regulatory authority of the agency or the department of ecology under law other than this chapter with respect to an environmental response project.
(3) A person is not responsible for or subject to liability for environmental remediation solely because it has the right to enforce an environmental covenant.
(1) The department of ecology shall establish and maintain a registry that contains information identifying all environmental covenants established under this chapter and any amendment or termination of those covenants, including the county where the covenant is recorded and the recording number. The registry may also contain any other information concerning environmental covenants and the real property subject to them that the department of ecology considers appropriate. The registry is a public record for purposes of chapter 42.56
RCW, but the department shall maintain electronic access to the registry without requiring a public records request for any information included in the registry.
(2) Failure to include information or inclusion of inaccurate information concerning an environmental covenant in the registry does not invalidate or limit the application or enforceability of the covenant.
Electronic signatures in global and national commerce act.
This chapter modifies, limits, or supersedes the federal electronic signatures in global and national commerce act (15 U.S.C. Sec. 7001 et seq.) but does not modify, limit, or supersede section 101 of that act (15 U.S.C. Sec. 7001(a)) or authorize electronic delivery of any of the notices described in section 103 of that act (15 U.S.C. Sec. 7003(b)).
Severability—2007 c 104.
If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.