Chapter 9: Environmental Covenants and Institutional Controls

Institutional controls can be effective tools in managing liability for environmental contamination and the costs related to cleanup of that contamination. Institutional controls are legal and administrative mechanisms used to minimize human exposure to contamination by ensuring appropriate land or resource use. Local zoning, building permits, unilateral orders, deed notices, and public advisories are examples of common institutional controls. An institutional control that has been particularly effective in managing environmental risks is the environmental covenant. These covenants are encumbrances on title to real property that run with the land, much like subdivision covenants that limit a property owner’s ability to change the color of his or her house or to park vehicles in his or her driveway.

In 2001, Colorado implemented a statutory environmental covenant that enables termination of remedial projects where levels of residual contamination permit some, but not all, uses of the property, or when the remedy requires continued monitoring or maintenance of an environmental control structure or feature. While private parties remain free to encumber their properties with environmental covenants of their own design, this chapter focuses primarily on Colorado’s statutory environmental covenant.

§ 9.1 Introduction
§ 9.2 Institutional and Engineering Controls
§ 9.3 Environmental Covenants

SCOTT A. CLARK, ESQ.
Burns, Figa & Will, P.C.

Scott A. Clark is a shareholder at Burns, Figa & Will, P.C. He represents private and public clients on a wide range of environmental and natural resources matters, including brownfields, remediation, real estate transactions, litigation, permitting, petroleum storage tank fund applications, regulatory compliance, water quality, and water rights. Mr. Clark has practiced law in Denver since 1994. He received his B.A. degree in biology from DePauw University, and his J.D. degree from the University of Denver, where he was a member of the University of Denver Law Review. Mr. Clark also devotes time to several professional and charitable organizations, including the Colorado Hazardous Waste Management Society, for which he has served as president, vice-president and director, the Southeast Business Partnership, for which he is co-chair of the Water Subcommittee, the Colorado Brownfields Foundation, for which he serves on the advisory committee, and Habitat for Humanity of Metro Denver, for which he serves on the board of directors.