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An Act Relating To Real Property; Enacting The Uniform Environmental Covenants Act; Providing For Covenants Restricting Use Of Real Property Subject To Environmental Remediation.

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MOD SB 374

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SB 374 on
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Related Documents

SCONC Committee Report
Fiscal Impact Report

SB 374 enacts the Uniform Environmental Covenants Act (UECA) based on the proposed uniform law developed by the Uniform Law Commission. The UECA allows “environmental covenants” (EC or ECs) to be created on real property and sets for the procedure for creating them. An EC is similar to an easement and concerns land that is polluted or contaminated. The EC is an agreement between the landowner, the state or federal agency that oversees the remediation of polluted land, and an entity that is the “holder” of the covenant (like a land trust holding a conservation easement). The EC allows the land to be remediated to a level below full remediation in exchange for having a restriction put on the land regarding its use, such as limiting current and future use of the land to commercial. For purposes of UECA, the restriction is called an “activity and use limitation.” The bill sets forth the details of what must be contained in the EC and requires that it be recorded in the county records of the county (or counties) in which the land is located.


The bill appears to provide a positive mechanism for causing polluted land to be remediated to some degree that otherwise might not be remediated at all. However, some concerns may exist.

  • One concern may be whether the mechanism would allow a landowner to avoid surface water remediation to any degree.
  • Another concern might that agreements for ECs may be made that could be stronger and that enforcement may be lax depending on the will of the parties involved.
  • The public might also be concerned that the provision for public notice, may not be sufficiently clear to ensure that such opportunities do in fact precede the creation of an environmental covenant.


On March 3rd the Senate Conservation Committee amended SB 374 by:

  • removing an agency option to waive the requirement that an environmental covenant be signed by every owner of the fee simple of the real property subject to the covenant;
  • adding a stipulation that public notices, opportunities for public comments and opportunities to request a hearing in connection with an environmental response project will identify whether an environmental covenant is proposed; and
  • removing a requirement that an agency must not approve any restriction on the use of ground water unless an environmental response project has been approved and the agency has determined that the environmental response project will achieve compliance with ground water or alternative abatement standards pursuant to the Water Quality Act.


Potential concerns about the amended bill might include the possibility that the public notice provision is still not completely clear and that the removing of the provision regarding NMED not approving a restriction on ground water weakens ground water protection.