(1) No environmental covenant shall be required for any environmental remediation project that results in residual contamination levels that have been determined by the relevant regulatory agency to be safe for all uses and that does not incorporate any engineered feature or structure or require any monitoring, maintenance, or operation.
(2) Except as specified in subsections (3) and (4) of this section, an environmental covenant under this part 3 shall be required for any environmental remediation project in which the relevant regulatory authority makes a remedial decision on or after July 1, 2001, that would result in either or both of the following:
(a) Residual contamination at levels that have been determined to be safe for one or more specific uses, but not all uses; or
(b) Incorporation of an engineered feature or structure that requires monitoring, maintenance, or operation or that will not function as intended if it is disturbed.
(3) The department may waive the requirement for an environmental covenant in the following circumstances:
(a) If the department determines that it is authorized under another statute or decision of the Colorado supreme court to implement and enforce environmental use restrictions against the present and subsequent owners of real property remediated pursuant to an environmental remediation project and implements environmental use restrictions under such statute or decision; or
(b) For a parcel of land involved in an environmental remediation project that is owned by any person who is not being required to remediate the contamination, and:
(I) The owner of any such parcel does not grant an environmental covenant under this section;
(II) The county, city and county, or municipality having jurisdiction over the affected land has enacted an ordinance or resolution imposing the relevant environmental use restrictions; and
(III) The county, city and county, or municipality having jurisdiction and the department have entered into an intergovernmental agreement for oversight and enforcement of the local ordinance or resolution pursuant to section 29-1-203, C.R.S. Such agreement shall be binding and mutually enforceable. The department shall have such authority as may be provided in the intergovernmental agreement to bring suit for injunctive relief to enforce any local ordinance or resolution described in this subsection (3), but only with respect to properties that are subject to the requirements of this section. Any intergovernmental agreement under this section shall require that, insofar as the local ordinance or resolution applies to properties that are subject to the requirements of this section, any amendments to the local ordinance or resolution shall incorporate such requirements as the department may recommend to ensure continued protection of human health and the environment.
(4) (a) When an environmental covenant is required under subsection (2) of this section, a restrictive notice may be substituted for the covenant as follows:
(I) An owner of a parcel of land involved in an environmental remediation project who is being required to remediate contamination may request that the department approve a proposed restrictive notice for such parcel or may request that the department issue a restrictive notice.
(II) The department may unilaterally issue a restrictive notice containing the provisions described in section 25-15-319 when an environmental covenant is required under subsection (2) of this section and the owner of the subject property fails to create a covenant or restrictive notice within thirty days after:
(A) The date of a remedial decision for an environmental remediation project that relies solely on environmental use restrictions to protect human health and the environment; or
(B) The completion of construction work for environmental remediation projects that require physical work.
(b) Prior to issuing a restrictive notice unilaterally under subparagraph (II) of paragraph (a) of this subsection (4), the department shall make a good-faith attempt to reach agreement with the owner of the subject property regarding a consensual covenant or notice.
(c) The department may not issue a restrictive notice for a parcel of land involved in an environmental remediation project that is owned by a person who is not being required to remediate the contamination, unless such person consents in writing.
(5) The department may accept environmental covenants or issue restrictive notices in cases where such covenants or notices are not required, including approvals of voluntary cleanup plans or petitions for no action determinations under sections 25-16-306 and 25-16-307, but the owner of the remediated land nonetheless desires to create such a covenant or requests that the department issue such a notice. A covenant or notice created under this subsection (5) may be enforced as any other covenant or notice.
Source: L. 2001: Entire section added, p. 455, � 2, effective July 1. L. 2008: IP(2), (3)(b)(III), (4), and (5) amended, p. 171, � 6, effective March 24.
25-15-321. Creation, modification, and termination of an environmental covenant. (1) An environmental covenant under this part 3 may be created only by the owner of the property through a written grant to the department by a deed or other instrument of conveyance specifically stating the intention of the grantor to create such a restriction under this article.
(2) The department is authorized to accept, refuse to accept, conditionally accept, hold, modify, and terminate environmental covenants.
(3) Instruments creating, modifying, or terminating an environmental covenant shall be recorded as any other instrument affecting title to and interests in real property.
(4) If the only uses allowed under the proposed environmental covenant are prohibited by existing ordinance or resolution, the department shall condition its acceptance of the covenant upon the applicant's demonstration that such applicant has obtained approval from the relevant authority that would allow for one or more of the proposed uses.
(5) Persons proposing to create, modify, or terminate an environmental covenant shall provide written notice of their intention to all persons holding an interest of record in the real property that will be subject to the environmental covenant, to all persons known to them to have an unrecorded interest in the property, and to all affected persons in possession of the property prior to such creation, modification, or termination, and shall provide the department with:
(a) A copy of the notice provided;
(b) A list of the persons to whom notice was given and the address or other location to which the notice was directed; and
(c) Such title information as the department may require.
(6) The department shall review and make a determination regarding all applications for creating, modifying, or terminating an environmental covenant within sixty days after receipt of such application, including the information described in subsection (5) of this section.
(7) Any determination by the department regarding a proposal to create, modify, or terminate an environmental covenant shall be subject to appeal in accordance with section 25-15-305.
Source: L. 2001: Entire section added, p. 456, � 2, effective July 1. L. 2008: (6) amended, p. 173, � 7, effective March 24.
25-15-321.5. Notice of environmental use restrictions - creation, modification, and termination. (1) A person who proposes to create, modify, or terminate a restrictive notice shall provide written notice of the person's intention to all persons holding an interest of record in the real property that will be subject to the restrictive notice, to all persons known to the person to have an unrecorded interest in the property, and to all affected persons in possession of the property prior to such creation, modification, or termination and shall provide the department with:
(a) A copy of the notice provided;
(b) A list of the persons to whom notice was given and the address or other location to which the notice was directed; and
(c) Such title information as the department may require.
(2) Before issuing a notice of environmental use restrictions unilaterally, the department shall provide a copy of the proposed restrictive notice to all persons holding an interest of record in the real property that will be subject to the restrictive notice, all persons known to the department to have an unrecorded interest in such property, and all affected persons in possession of such property, and shall offer such persons a minimum of thirty days to comment on the proposed restrictive notice, unless notice has already been provided pursuant to subsection (1) of this section. In determining whether to issue the restrictive notice unilaterally, the department shall consider any comments received.
(3) The department shall review and make a determination regarding all requests to create, modify, or terminate a restrictive notice within sixty days after receipt of such request, including the information described in subsection (1) of this section.
(4) Upon issuance or approval of the restrictive notice, the department shall record the restrictive notice in the clerk and recorder's office for the county or counties in which the affected land is situated. For approved restrictive notices, the department may allow the owner of the property to record the notice. No person may record a restrictive notice that does not have the department's written approval.
(5) The department may authorize any notice of environmental use restrictions created in accordance with this section to be replaced by an environmental covenant as described in section 25-15-319. The department may condition its authorization and approval of the termination of the notice of environmental use restrictions on the prior creation, department approval and acceptance, and effective recording of the environmental covenant.
(6) Modifications or terminations of restrictive notices shall be recorded as provided in subsection (4) of this section. No person may record a modification or termination of a restrictive notice that does not have the department's written approval.
(7) Any determination by the department to issue, approve, modify, or terminate a notice of environmental use restrictions shall be subject to appeal in accordance with section 25-15-305.
Source: L. 2008: Entire section added, p. 173, � 8, effective March 24.