When constructing an estate plan, property conveyance is an important feature. However, devising property can sometimes create unanticipated problems when the property is subject to environmental laws such as the Clean Water Act, Endangered Species Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The Clean Water Act (CWA) regulates the discharge of pollutants into natural waters and regulates quality standards for surface waters. The CWA originated in 1948, but was significantly amended into the current CWA in 1972. There are numerous provisions of the CWA that may affect a landowner’s conveyance, but the most likely scenario encountered is the necessity of obtaining a Section 404 permit, which can authorize discharge of dredge or fill material into waters.
The Endangered Species Act (ESA) intends to protect and recover endangered or imperiled species in order to maintain the natural ecosystem. It has been described as the most far-reaching wildlife preservation act in the world. Although the ESA does not prevent conveyance of property, it has significant potential to inhibit development of land. If an endangered or threatened species resides on the land to be conveyed, the ESA could prohibit any changes to the natural ecosystem of that species.
CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, was created by Congress in 1980. CERCLA creates penalties for the release of hazardous substances. It also encourages individuals to clean up waste in order to recover cleanup costs from others. CERCLA’s provisions can extend to inherited property, trusts, estates, and trustees or fiduciaries, so it has broad application to estate planning.
Strategies for addressing these environmental acts will be discussed at the CLE offices on Friday, March 9, 2013, at the “Natural Resource Issues in Estate Planning” seminar. Water law topics, real estate conveyancing, conveyance of mineral interests, oil and gas planning, and hard minerals will also be discussed. To register, click the link below or call the CLE offices at (303) 860-0608.