1. Uniform Environmental Covenants Act Brownfields 2009 November 18, 2009 Kieran P. Marion Legislative Counsel, Uniform Law Commission

2. UECA Drafting Process Timeline: Timeline: Study and Drafting November 2000-August 2003 Study and Drafting November 2000-August 2003 ABA review and approval, Spring 2004 ABA review and approval, Spring 2004 Active legislative introduction began in 2005 Active legislative introduction began in 2005 Basic Policy: UECA reflects a a balanced approach which promotes and protects the interest of owners, lenders, regulators, local governments, and other stakeholders in ensuring that real property-based land use controls remain intact and enforceable as long as necessary to protect human health and the environment. Basic Policy: UECA reflects a a balanced approach which promotes and protects the interest of owners, lenders, regulators, local governments, and other stakeholders in ensuring that real property-based land use controls remain intact and enforceable as long as necessary to protect human health and the environment.

3. UECA Advisors & Stakeholders State & Federal Regulators State & Federal Regulators Property Owners Property Owners PRP’s PRP’s Lenders Lenders Environmental Community Environmental Community Municipalities Municipalities Title Insurance Companies Title Insurance Companies Real Estate and Environmental Lawyers Real Estate and Environmental Lawyers

4. What is an “Environmental Covenant” EC’s are land use restrictions or requirements (technically they are a statutorily-defined “servitude”) that are placed on a parcel of property by an agreement that is recorded in the title of the property. EC’s are land use restrictions or requirements (technically they are a statutorily-defined “servitude”) that are placed on a parcel of property by an agreement that is recorded in the title of the property. Under an EC, the right to do certain things (run a daycare center, dig a drinking water well, remove a berm, e.g.) or to NOT do certain things (file reports, maintain a monitoring system, allow access to regulators, e.g.) which would otherwise be part of the property is transferred from the owner to a holder. Under an EC, the right to do certain things (run a daycare center, dig a drinking water well, remove a berm, e.g.) or to NOT do certain things (file reports, maintain a monitoring system, allow access to regulators, e.g.) which would otherwise be part of the property is transferred from the owner to a holder.

5. Things To Keep In Mind EC’s rely on property rights, not regulatory power, and are enforceable under contract law and property law. UECA provides predictability and stability by working with, rather than against, real property law and expectations. EC’s rely on property rights, not regulatory power, and are enforceable under contract law and property law. UECA provides predictability and stability by working with, rather than against, real property law and expectations. EC’s are voluntary tools that do not displace or reduce existing regulatory police powers. EC’s are voluntary tools that do not displace or reduce existing regulatory police powers. Passage of UECA does NOT invalidate prior control instruments or agreements. Passage of UECA does NOT invalidate prior control instruments or agreements.

6. Four Issues UECA Resolves Creation of an EC. Creation of an EC. Legal problems in making an EC valid and enforceable. Legal problems in making an EC valid and enforceable. Modifying or terminating an EC. Modifying or terminating an EC. Enforcing an EC. Enforcing an EC.

7. UECA Legislative Status 24 Enactments since 2003: 24 Enactments since 2003: AlabamaMississippi DelawareMissouri Washington DCNebraska GeorgiaNevada HawaiiOhio IdahoOklahoma IllinoisPennsylvania IowaSouth Dakota KentuckyUS Virgin Islands MaineUtah MarylandWashington MinnesotaWest Virginia

8. UECA Uniform Environmental Covenants Act