[CPEO-MEF] Cal-Navy Land Use Controls Agreement

[Lenny Siegel <lsiegel@cpeo.org>]

Recently the U.S. Department of the Navy (DON) and Cal-EPA's Department
of Toxic Substances Control (DTSC) signed a Memorandum of Agreement
(MOA) governing the enforcement of land use controls (LUCs) - that is,
both institutional controls and engineering controls - at closing bases
in California. The MOA states, "In the case of property being closed and
transferred by DON to a nonfederal entity, it is necessary to insure
that these LUCs stay in place and are honored by all future owners and
occupants of the property in question, for as long as contamination is
present at levels that do not permit unrestricted use.

The document recognizes deed covenants, authorized under California
Civil Code Section 1471, "insuring that the deed transferring such
property contain a formal restriction - a restrictive covenant - on the
use of the property that will 'run with the land,' and is enforceable
against the 'servient estate' (i.e. all future owners of the land) and
is retained by the United States, as represented by DON, acting as
holder of the 'dominant estate.' ... DON has agreed to include such
restrictive language in the deeds it executes where it imposes LUCs as a
remedy under applicable law."

The Navy and DTSC agree that DTSC should also be in a position to
enforce such land use controls. "To this end, in addition to retaining
the power to enforce protective covenants, DON agrees to convey a
separate power to enforce such restrictive covenants to DTSC equivalent
to DON's power to enforce any 'environmental restrictions' burdening the
transferring property by entering into a 'Covenant to Restrict Use of
Property.'"

The two agencies negotiated two model Deed Restrictions to be adapted to
most Navy transfers within the state, but not "early transfers" in which
the transferee has agreed to perform cleanup. If the cleanup is being
performed by the Navy under the "early transfer" law, initial
institutional controls - those specified in the Deed Restriction - are
expected to less detailed than transfers where remedies are in place.

The first model applies generally to transferring facilities with
Federal Facilities Agreements and Federal Site Remediation Agreements.
The second applies to other properties.

This agreement for the first time provides a negotiated framework for
establishing long-term enforcement of land use controls at closing bases
in California. However, the MOA, negotiated privately between DTSC and
the Navy, makes no new provision - that is, beyond existing law and
procedures - for involvement of transferees, other local government
entities, or public stakeholders in the development of deed
restrictions. It also provides no new tools for resolving disputes
between DTSC and the Navy. 

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org
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