West Virginia
Land Use Covenants
West Virginia Land Use Covenants
The West Virginia Department of Environmental Protection (WVDEP) generally uses Land Use Covenants (LUCs), which it also calls environmental covenants, as the institutional controls on sites where removing or treating all the contamination is not possible or practical. A covenant is a legal instrument that imposes activity and use limitations where residual contamination is present on a property. All of them are executed under the Uniform Environmental Covenants Act, W. Va. Code § 22-22B, and the Office of Environmental Remediation posts a file of covenant sites.
In a Phase I ESA
WVDEP's land use covenants are the West Virginia form of the state institutional and engineering control records that ASTM E1527-21 lists as a standard source. The general reading of a control listing is on the State/Tribal Institutional and Engineering Control Registries page. Five West Virginia details shape how to read one.
- Three cleanup programs produce them. WVDEP says covenants are routinely placed on properties that complete remediation through the RCRA Corrective Action Program, the UECA-LUST Program and the Voluntary Remediation Program.
- The covenant is also in the land records. WVDEP says covenants are recorded with property deeds in the county recorder's office and stay in the chain of title. Check both the county deed records and WVDEP's file of covenant sites; where one shows a covenant and the other does not, ask why.
- Engineering controls show up through the covenant. WVDEP gives fences and soil caps as examples of engineering controls. The pages read name no separate list of them. WVDEP ties the limitation on excavation to engineering controls such as a soil cap, so a covenant with that limitation is a reason to ask about a cap.
- The duties continue. A covenant generally includes requirements for notice after a property transfer and for periodic compliance reporting. WVDEP says it continuously monitors and regularly inspects properties with recorded covenants, and that the agency, affected persons and local government may sue for injunctive or other equitable relief if a covenant is violated.
- A covenant can change. WVDEP says covenants remain on the deed in perpetuity, but can be amended or terminated if residual contamination no longer presents an unacceptable risk, with the consent of the agency, the current owners and all the original signers that still exist. Read the version now in force.
What a covenant says
WVDEP says a covenant generally includes:
- a legally sufficient description of the property;
- a description of the activity and use limitations;
- the name and location of any administrative record for the environmental response project;
- a list of covenant holders;
- a brief narrative of the contamination and the remedy.
WVDEP lists four limitations as commonly imposed. Property remediated to industrial standards may be used only for nonresidential purposes. Groundwater use is prohibited, except for monitoring or remediation, where contaminants exceed drinking water standards. Excavation, drilling or penetration of the land surface is prohibited without a knowledgeable contractor where a control such as a soil cap is the remedy. New building construction may be prohibited unless vapor barriers or ventilation systems are installed, where vapor intrusion is a concern.
Where to look a site up
- WVDEP posts WV Land Use Covenant Sites on its Land Use Covenants page. It is a map file that WVDEP says may be opened in Google Earth.
- The deed records of the county where the property lies.
Getting the file
A covenant generally names the administrative record for the cleanup and where it is kept, so start there. The Office of Environmental Remediation's main page links the agency's Request Information page for a Freedom of Information Act request, which can also be emailed to depfoia@wv.gov. See the Application Enhancer page.
Sources
West Virginia Department of Environmental Protection pages, read October 7, 2026, no modified date shown: