W. Va. Code R. § 60-3-13

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 60-3-13 - Land Use Covenants

13.1. Any limitation on the use of a property that is required in order to meet applicable environmental standards shall be contained in a land use covenant. The use restrictions may include prohibiting residential use of some or all of the site or requiring maintenance of engineering or institutional controls.

13.2. Contents of a land use covenant

13.2.a. A land use covenant shall:

13.2.a.1. State that the instrument is an environmental covenant executed pursuant to the Uniform Environmental Covenants Act, W. Va. Code § 22-22B-1, et seq.;

13.2.a.2. Contain a legally sufficient description of the real property subject to the covenant;

13.2.a.3. Describe the activity and use limitations on the real property;

13.2.a.4. Identify every owner of record of a fee interest in the property;

13.2.a.5. Identify every holder of the land use covenant within the meaning of W. Va. Code § 22-22B-2(6);

13.2.a.6. Contain the notarized signature(s) of the agency, every holder, and, unless waived by the agency, every owner of the fee simple of the real property subject to the covenant;

13.2.a.7. Identify the name and location of any administrative record for the work performed under the Act and this rule at the real property subject to the covenant;

13.2.a.8. State whether the applicant used residential or non-residential exposure assumptions to comply with a site-specific remediation standard;

13.2.a.9. Provide requirements for notice within 10 days following transfer of a specified interest in, changes in use of, or applications for building permits or proposals for any site work affecting the contamination on the property subject to the covenant;

13.2.a.10. Contain a provision that the applicant and its assigns and successors are relieved of all civil liability to the State for the release of contaminants and remediation activities, as long as the property meets applicable standards in effect at the time the covenant was issued; and

13.2.a.11. Contain a map indicating the area or areas to which specific activity and use limitations apply.

13.2.b. A land use covenant may:

13.2.b.1. Provide a brief narrative description 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;

13.2.b.2. Grant rights of access to the property for purposes of implementation or enforcement of the covenant;

13.2.b.3. Provide requirements for periodic reporting describing compliance with the covenant;

13.2.b.4. Provide limitations on amendments or termination of the covenant in addition to those specified in W. Va. Code §§ 22-22B-9 and 22-22B-10; and

13.2.b.5. Provide rights of the holder in addition to the holder's right to enforce the covenant pursuant to W. Va. Code § 22-22B-11.

13.2.c. In addition to other conditions for approval of an environmental covenant, the Secretary may require those persons he or she specifies as having interests in the real property to sign the covenant.

13.3. The applicant for participation in the Voluntary Remediation Program shall record the land use covenant in the deed book of each county in which any portion of the site is located, return the original recorded document to the Secretary, and provide a certified copy of the recorded covenant to each of the parties named in subsection 13.5 of this rule.

13.4. The land use covenant form contained in Appendix 60-3E meets the requirements of this section. The holders and the Secretary may agree to additional provisions or modifications that are not inconsistent with this rule, the Voluntary Remediation and Redevelopment Act, or the Uniform Environmental Covenants Act.

13.5. The applicant, property owner, or responsible party, as applicable, shall provide a copy of the land use covenant to:

13.5.a. Each person who signed the covenant;

13.5.b. Each person holding a recorded interest in the real property subject to the covenant;

13.5.c. Each person in possession of the real property subject to the covenant;

13.5.d. Each municipality or other unit of local government in which real property subject to the covenant is located; and

13.5.e. Any other person the agency requires.

13.6. The applicant shall provide geographic information system (GIS) data in either ESRI® shapefile or a computer aided drafting format adequate to accurately delineate the area or areas to which specific land use restrictions or institutional controls apply.

13.6.a. All GIS location data shall have a horizontal accuracy within 5 meters (15 feet).

13.6.b. All spatial data shall be in one of the three following coordinate systems:

13.6.b.1. Universal Transverse Mercator (UTM) North American Datum 1983 (NAD83) zone 17 North - meters (preferred);

13.6.b.2. Geographic (Latitude and Longitude) 1984 World Geodetic System (WGS84); or

13.6.b.3. West Virginia State Plane Coordinate System, North or South zone as appropriate, NAD27 or NAD83 - US Survey feet or meters.

13.7. The validity of a covenant is not affected by failure to provide a copy of the covenant as required under section 13.5 of this rule.

13.8. The duration, amendment, and termination of a land use covenant shall be governed by the Uniform Environmental Covenants Act, W. Va. Code § 22-22B-1, et seq.

W. Va. Code R. § 60-3-13