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Environmental Covenant

An Environmental Covenant is one tool available for properties impacted by petroleum and other hazardous substances. The use of environmental covenants recognizes that not all contamination needs to be cleaned up provided risks to human health and the environment due to the residual contamination are adequately addressed. More information on environmental covenants is provided below.

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An environmental covenant is a legal instrument recorded on property and governed by the Uniform Environmental Covenants Act (Idaho Code §55-30). The covenant can be used as part of a risk-based cleanup to control the potential risks posed by residual contamination.

Environmental covenants can only be used on properties where environmental response projects are under a state or federal environmental remediation program. An environmental covenant is created by a written agreement in which the parties bind themselves, and their successors in interest to the land, to specific conditions, obligations, and/or restrictions of land use called activity and use limitations. Activity and use limitations run with the land (i.e., covenant is recorded on the property deed) and prevent exposure to contaminants by limiting activity and uses on the property, such as prohibiting extraction of ground water, excavation of soil, and/or any structures or buildings. The land may be restricted to nonresidential uses only, and activity and use limitations can apply to specific restricted areas on the property.

If an environmental covenant (EC) may be an acceptable part of a cleanup plan, the EC template should be used. Components include the EC document, legal description, map, and copy of the current deed. DEQ recommends the property owner consult with an attorney experienced in Idaho environmental law and/or property law for drafting and implementing an EC. The parties must understand the terms of the EC, including under what conditions it can be removed.

The EC and submittals are given to DEQ for review and comment to ensure they are complete. When deemed acceptable, the owner and other parties sign the EC, which is then sent to DEQ for signature. The property owner then files the EC and submittals with the county recorder’s office and sends a copy of the recorded EC back to DEQ. We maintain an EC registry.

The terms of the EC specify certain reporting obligations on the part of the owner. These include notification of the transfer of the property to a new owner and annual compliance reporting (see Notice of Annual Compliance Reporting for Environmental Covenant). The compliance reporting requires written documentation verifying that the activity and use limitations remain in place and are in compliance. This report must be submitted to DEQ annually.

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