§ 25-15-318 — Nature of environmental covenants

(1) An environmental
covenant shall be perpetual unless by its terms it is limited to a specific duration,
unless the department approves a request to terminate or modify it pursuant to
section 25-15-319 (1)(h), or unless it is terminated by a court of competent
jurisdiction. An environmental covenant may not be extinguished, limited, or
impaired through issuance of a tax deed or through adverse possession, nor may an
environmental covenant be extinguished, limited, or impaired by reason of the
doctrines of abandonment, waiver, lack of enforcement, or other common law
principles relating to covenants, or by the exercise of eminent domain.

(2) Notwithstanding any other provision of law, including any common-law
requirement for privity of estate, an environmental covenant shall run with the land
and shall bind the owner of the land, the owner's successors and assigns, and any
person using the land. An environmental covenant shall not be deemed
unenforceable on the basis of:

(a) A lack of privity of contract;

(b) A lack of benefit to a particular parcel of land;

(c) Failure of the environmental covenant to expressly state that it runs with
the land; or

(d) Any other inconsistency with common-law requirements applicable to
common-law covenants.

(3) The requirements and restrictions of an environmental covenant are
requirements under this part 3 but may only be enforced as provided in section 25-15-322. The creation of an environmental covenant does not trigger the application
of any other requirement of this part 3.

(4) The department shall not acquire any liability under state law by virtue of
accepting an environmental covenant, nor shall any named beneficiary of an
environmental covenant acquire any liability under state law by virtue of being such
a beneficiary.

Legislative History

Source: L. 2001: Entire section added, p. 453, � 2, effective July 1. L. 2008: (2) amended, p. 170, � 3, effective March 24.