§ 57-25-109. Duration -- Amendment by court action.

(1) An environmental covenant is perpetual unless it is:

(a)

(i) limited to a specific duration by its terms; or

(ii) terminated by the occurrence of a specific event;

(b) terminated by consent under Section 57-25-110;

(c) terminated under Subsection (2);

(d) terminated by foreclosure of an interest that has priority over the environmental covenant; or

(e) terminated or modified in an eminent domain proceeding, but only if:

(i) the agency that signed the covenant is a party to the proceeding;

(ii) all persons identified in Subsections 57-25-110(1) and (2) are given notice of the pendency of the proceeding; and

(iii) the court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.

(2)

(a) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in Subsections 57-25-110(1) and (2) have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant.

(b) The Department of Environmental Quality's determination under Subsection (2)(a) or its failure to make a determination upon request is subject to review under Title 63G, Chapter 4, Administrative Procedures Act.

(c) A federal agency's determination under Subsection (2)(a) or its failure to make a determination upon request is subject to review under applicable federal law.

(3) Except as otherwise provided in Subsections (1) and (2), an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.

(4) An environmental covenant may not be extinguished, limited, or impaired by application of Title 57, Chapter 9, Marketable Record Title.

Amended by Chapter 382, 2008 General Session