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Department of Defense Guidance on Land Use Controls

Associated with Environmental Restoration Activities

for Property Planned for Transfer Out of Federal Control

1. PURPOSE.

This document provides DoD Components with environmental restoration and land use

management responsibilities guidance on developing, implementing, recording, and managing

land use controls (LUCs) for property planned for transfer from Department of Defense (DoD) to

non-Federal entities. This guidance is based on DoD Policy on Land Use Controls Associated

with Environmental Restoration Activities. LUCs include any physical, legal, and/or

administrative mechanism that restricts the use of, or limits access to, real property to prevent

exposure to contaminants above permissible levels. LUCs are employed to protect the integrity

of the engineering remedy (if present) and human health and the environment after transfer of

property.

The objective when implementing LUCs is to develop a system of mutually reinforcing

controls to ensure that land use is consistent with restrictions imposed on the property during the

environmental restoration process. Implementing LUCs through established real estate and land

use management mechanisms provides the best assurance that LUCs will be effective. Beyond

establishing the appropriate implementation mechanisms before transfer, DoD may have only

limited authority to control the use of property it no longer owns. Because state and local laws

govern property transfer and land use, actions to implement and manage LUCs will be governed

largely by state and local requirements.

This guidance provides a range of options that may be used separately or collectively for

incorporating land use controls into existing land use management processes. It also discusses

the roles of the DoD Component environmental office and property disposal agent in the

implementation and management processes. The intent of this guidance is to provide an overall

framework with a range of available options depending on site-specific circumstances.

2. APPLICABILITY AND SCOPE.

a. Transfers Out of Federal Control. This guidance applies to real property being transferred

out of Federal control where a decision to restrict land use has been made as part of the

environmental restoration process. Such property includes early transfers made pursuant to

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) section

120(h)(3)(C) and property assigned to another Federal agency solely for the purpose of transfer to

a non-Federal entity.

b. Leased Property. If Federal real property is put into reuse through a long-term lease before

being transferred by deed, the framework described in this guidance is applicable for

implementing LUCs. Those lease restrictions shall be reflected in the Finding of Suitability to
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Lease and lease documents as further described in the May 18, 1996, DoD Policy on the

Environmental Review Process to Reach a Finding of Suitability to Lease (FOSL).

c. Exclusions. This guidance does not apply to property that remains in Federal control,

including active installations (see DoD Guidance on Land Use Controls Associated with

Environmental Restoration Activities for Active Installations) and property transferred to another

Federal agency for its programmatic use. This guidance does not apply to U.S. Army Civil

Works property.

3. GUIDANCE. The guidance below outlines the process for implementing, documenting, and

managing LUCs for property planned for transfer from DoD to non-Federal entities.

a. Pre-Transfer.

(1) Consideration of Land Use Controls. In the remedy selection process, uses other than

residential or unrestricted use may be considered. For property being transferred, an important

goal is to facilitate community redevelopment efforts; however, this does not imply that reuse

alone dictates the selection of the environmental restoration remedy. This remedy must be

selected in accordance with the remedy selection criteria established in the CERCLA and the

National Contingency Plan (NCP) that include cost, implementability, and short and long-term

effectiveness. For Base Realignment and Closure (BRAC) property, the Local Redevelopment

Authority’s (LRA’s) redevelopment plan (specifically the land use plan) typically will be the

basis for land use assumptions. If there is no such redevelopment plan, the supporting property

disposal agent or real property management office will develop the reasonably anticipated land

use. A tool for considering various land use and remedy options is the DoD Guide to Assessing

Reuse and Remedy Alternatives at Closing Military Installations available on DoD’s

Environmental Cleanup Web Page at [http://www.dtic.mil/envirodod/brac/]. Development of the

reasonably anticipated future land use assumption may entail evaluation of a range of likely land

uses taking into account factors such as current land use, current zoning classification, property

characteristics, and the land use in the surrounding area. The reasonably anticipated future land

use assumptions allow the Component (in conjunction with regulatory agencies) to determine

the appropriate remedy and whether LUCs are necessary.

Unlike other activities in the cleanup process, which are the sole responsibility of the

environmental office, the development of LUCs is a team effort. Close and continual

communication between the supporting environmental office and property disposal agent is

essential during the development of LUCs and throughout the entire land use process. Once a

decision is made that LUCs are needed, the supporting environmental office, in conjunction with

the property disposal agent, determines what types of LUCs will be most effective to protect

human health and the environment and to facilitate reuse. Typical LUCs include restrictions on

residential use, excavation, and ground water use restrictions.

(2) Finding of Suitability to Transfer. After selecting an appropriate use restriction that results

in a LUC, the environmental office shall provide sufficient information on the nature and intent

of the restrictions to the property disposal agent to ensure that the restrictions are clearly
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described in property conveyance documents. This information should include a specific

description of the LUC; the rationale for the LUC; and the description and location of the

affected property. The information should be contained in a Finding of Suitability to Transfer

(FOST) or in a functionally equivalent document. The FOST, or equivalent document, functions

primarily as a bridge between the environmental process (memorializing the environmental

restoration decisions and actions taken) and the real estate process (describing land use planning

and management decisions). The FOST should document the specifications of the LUC (e.g., no

excavation, no groundwater use) that need to be included in the deed and implemented through

land use management and control mechanisms described later in this document. The property

disposal agent will develop the specific deed language.

(3) Implementation of Land Use Controls. Generally, the types of mechanisms that restrict

land use are either governmental or proprietary. Governmental mechanisms are normally

controlled and managed by the local government as delegated by the state. Such local police

power authorities include land use planning, zoning, and site development/building permitting

codes and ordinances. Proprietary controls are contractual mechanisms, usually established in a

deed or contract for sale in the form of covenants, easements, or equitable servitudes; these

mechanisms usually require a property owner to do or refrain from doing something and can be

used to impose a duty on the landowner to comply with use restriction. Another form of a

proprietary mechanism is a deed notice that can be used to provide information on use

restrictions on the property. A particular property may require different types of mechanisms for

a specific use restriction. Because many of these mechanisms exist solely within the authority of

the state or local government or apply to the actions of the property owner, the property disposal

agent should work closely with the appropriate local or state agencies and potential transferee

early in the disposal process.

(a) State Requirements. LUCs shall comply with state LUC management provisions,

consistent with Federal law and DoD environmental policy. The Component environmental

office or the property disposal agent, as appropriate, should request information from the

appropriate state agency on mechanisms used to track and enforce LUCs. If possible and

appropriate, the Component or property disposal agent should grant a property interest,

consistent with applicable law, to the relevant state or local agency having authority to hold

such an interest that would allow the state or local agency to maintain and enforce the LUC.

This will help ensure that real estate rights for the state in which the property is located are

enforceable.

(b) Layering Strategy. The most effective method of implementing LUCs is through a

layering strategy or system of mutually reinforcing LUCs. When deciding what land

management controls may help to reinforce a restriction, the Component shall investigate

mechanisms available in the local area, such as the zoning code or a state land use control

registry. State and local government land use management mechanisms and tools with

general applicability to all property within their jurisdiction have the potential to become a

LUC. For example, fully implementing a prohibition on groundwater use may entail a deed

restriction, a zoning ordinance, a local ordinance restricting use of groundwater, limitations

on well drilling permits, and notice to the local community to ensure that a restriction
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remains protective and prevents inappropriate uses of the property. Using available state and

local real estate mechanisms ensures incorporation of LUCs into the local land use and

regulatory processes and continued maintenance of the controls. Other state and local

mechanisms already in place in the community (e.g., some communities have a “one-call”

system for remediated properties similar to systems in use for obtaining information on

buried utility lines) should also be considered. For further information on tailoring layering

mechanisms, see DoD’s Environmental Cleanup Web Page at

[http://www.dtic.mil/envirodod/brac/].

(c) Describing the Land Use Control Strategy. To clearly delineate the responsibilities of all

parties involved in implementing the LUCs, Components shall develop a LUC

implementation plan, which should specify the physical, administrative, and legal

mechanisms to be used to ensure the restricted use of, or access to, the specific property

parcel. It should also identify the specific duties for those having LUC implementation

responsibilities. This plan is an internal management tool and does not impose any additional

legal obligations. The Component's plan will reflect the intent of all parties at the time the

LUCs are developed and implemented. The level of detail in the plan shall be commensurate

with the size of the site, the type of controls needed, and other relevant factors. The plan may

be a separate document or part of the property disposal plan. Finalization and

implementation of the plan identifying the LUC strategy should occur only after concluding

all discussions and coordination with the transferee and local entities. During the five-year

review process (discussed later in this document), validation of this plan ensures that LUC

mechanisms are still in place. The plan shall also specify the process for discontinuing the

land use controls and layering mechanisms if some or all of the LUCs become unnecessary.

(d) Roles of Other Parties. Other parties critical to the LUC process include the transferee,

environmental regulators, and relevant state and local agencies. The appropriate DoD

Component office should identify and establish contact with the transferee and these state and

local agencies; which may include local planning and public works agencies; planning and

zoning commissions; licensing, permitting, and inspection agencies; tax assessors; and state

and Federal environmental regulators. Depending on the function of the state or local agency

(i.e., primarily environmental or land use management), the appropriate Component office

(environmental or property disposal) should coordinate that part of the layering strategy.

Once the parties involved in the layering strategy have been identified and after individual

discussions have been conducted, both the environmental office and property disposal agent

should meet with the parties to discuss the Component’s proposed LUC strategy and

coordinate a final strategy amenable to all parties.

b. At Transfer.

(1) Deed Restrictions/Transfer Agreements. In accordance with the DoD July 25, 1997, policy

memorandum, Responsibility for Additional Environmental Cleanup after Transfer of Property,

the property disposal agent shall ensure the LUCs, along with provision for future DoD access to

the property, are incorporated into the property transfer documents. The property disposal agent,

in consultation with the environmental office and input from the transferee, will draft the
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necessary language for the LUCs, as most LUCs ultimately will be memorialized in the deed as

restrictions (e.g., restrictive covenants, negative easements, equitable servitudes). At a

minimum, the property disposal agent should verify with the environmental office that the LUC,

as drafted, addresses the particular environmental restoration concerns at the site. In drafting the

restriction, the property disposal agent should consult both state property and environmental law

because it may require the use of a particular type of instrument or operative language. For

example, Connecticut environmental law provides a form for drafting the deed restriction and

model language that must be used to create an environmental use restriction.

In addition to the specific language describing the restriction, the transfer documents

(such as the contract for sale) shall reference the environmental documents containing the

restriction rationale. At a minimum, these documents should reference the FOST (if BRAC

property) or other functionally similar document, the decision document (such as the ROD), and

other appropriate environmental documents (e.g., the Environmental Baseline Survey). The

transfer documents should also include a reference to the location of the CERCLA

Administrative Record. The transfer documents should contain, as appropriate, additional

reference information, such as the exposure assumptions used to make the environmental

restoration decision or remedy selection. Typically, this type of information is included in the

FOST or the Environmental Baseline Survey (EBS) for the transfer. Federal contact information

(e.g., a specific agency office address and telephone number) should be included in the transfer

documents in case a problem arises with a LUC, additional contamination is found, or the

transferee wishes to modify or terminate a LUC.

In addition, the deed should specifically state the restricted uses of the property beyond

the basic categories of residential, commercial, recreational, or industrial. For instance:

“industrial uses permitted include office space and light industrial,

but exclude residential housing, playgrounds, nurseries, child-care

facilities, and elder-care facilities” or

“the Grantee covenants and agrees that it shall not consume or

otherwise use the groundwater underlying the property.”

In developing deed restrictions, the property disposal agent should distinguish the

property being restricted from the sections of the property being transferred for unrestricted use.

This ensures the identity of the specific parcel with use restrictions is not lost over time and will

help ensure deed restrictions survive subsequent property transfers. Suggested ways to describe

the restricted portions of property include referencing metes and bounds and/or landmarks. The

identification of specific parcels with LUCs in the purchase agreement and deed will also prevent

undue loss of value for the entire property and will not burden parcels not requiring LUCs.

Because the property disposal agent drafts the purchase agreement, it should negotiate the

responsibilities of the transferee for maintaining LUCs. These responsibilities include, at a

minimum, compliance with LUCs, but should also include notifying DoD and other identified

stakeholders if a violation of the LUCs occurs. The responsibilities should be memorialized in
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the purchase agreement and deed. These documents should also state that the transferee’s

protections under CERCLA section 120(h)(3) and section 330 of Public Law 102-484 are tied to

these responsibilities to maintain LUCs.

Because some states have statutory limits on the length of time that a covenant or

easement can be in effect (e.g., Rhode Island), renewal of such LUCs may be necessary. In

negotiating the purchase agreement, the property disposal agent should reach agreement with the

transferee on how the restriction is to be renewed. The property disposal agent should

memorialize the agreement reached in the deed to provide notice to future purchasers.

(2) Recordation of Land Use Controls. The property disposal agent shall comply with the

applicable requirements of state real estate and environmental law governing the implementation

of land use restrictions. These requirements may include registering the use control with the state

environmental regulatory agency or local land use agency, or using state model language in

drafting the use control. The transferee will be responsible for recording the land use restriction.

Recordation of the land use restriction must comply with the requirements of state property law

for recording deeds, plus any local requirements, as long as they are not inconsistent with Federal

law.

At transfer, the property disposal agent should ensure that copies of the deed are provided

to appropriate local government offices such as the local planning and public works agencies;

planning and zoning commissions; licensing, permitting, and inspection agencies; and tax

assessors. This provides an additional source of notice about restrictions. The local agencies

may record the restriction on their geographic information system (GIS) or tax maps or in the

subdivision records to formally incorporate the LUC into their existing local development review

and permitting processes.

c. Post-Transfer. This section discusses the actions necessary on the part of the Component

and others (e.g., transferee, state and local governments) to ensure LUCs are effectively

maintained and, when necessary, modified or terminated.

(1) Land Use Management Tools. A number of options, used separately or collectively, can

ensure the management and maintenance of land use controls over time and proper incorporation

into local land use ordinances and management systems. The options presented below provide

Components with the flexibility to use the tool or tools appropriate to a specific property.

(a) State Land Use Control Management Systems. A growing trend in state environmental

law is state requirements for managing LUCs that arise because of environmental factors.

These requirements mandate methods of developing LUCs and documenting them in state

developed registries. Such laws may also require involvement of state regulators to modify

and/or enforce LUCs. State environmental laws may resolve state property law issues

surrounding enforcement of LUCs by allowing LUCs to be enforced by third parties,

including state and local agencies. Where such generally applicable mechanisms exist for

managing LUCs, DoD and the transferee will comply with such requirements absent a
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conflict with Federal law. The options below generally provide the same recommendations

for LUC management as state laws discussed in this paragraph.

(b) Notice. Notifying affected entities of the existence of LUCs is an effective method to

prevent inappropriate use of transferred property. Components should not rely solely on

recorded real estate records to provide constructive notices on LUCs. The transferee, the

Component, or relevant state or local agencies can provide the notices. A one-time written

notice should be sent when the LUC is first implemented and annual reminder notices can be

generated. The responsibility for and frequency of the notice will depend on the agreement

reached between the property disposal agent and the transferee. The property disposal agent

should negotiate notice requirements with the future transferee with input, as appropriate,

from environmental regulatory and local government agencies. The written notification

should be provided through a variety of mechanisms, including public notice or letter.

(c) Self Certification. Another type of notice mechanism is self-certification, in which the

responsibility for confirming that LUCs remain protective is placed on the transferee (and all

subsequent transferees) of the property. For example, on a regular basis, the transferee

certifies the land is still being used for the intended purpose, such as industrial or agricultural

use. Self-certification can provide a cost-effective means of gaining knowledge on the

property use from the person closest to the property. This responsibility should be reflected

in the transfer documents. The parties should also determine which agencies (e.g., state or

local agency, or Component property disposal agent) will receive the self-certification.

Components should negotiate with the transferee to certify to more than one agency (e.g.,

environmental regulators, local government officials) as part of the layering strategy.

Components should use this mechanism with caution and only in conjunction with a

provision for spot-checking self-certification reports, because this mechanism relies on the

veracity of the transferee’s reporting.

(d) Markings. Where possible, if the area of the property being restricted is sufficiently

small, permanent markers may be used to identify restricted use areas. Plaques at the site

also may be used to indicate prohibited activities.

(e) Five-Year Reviews and Long Term Monitoring (LTM). Where performed as part of the

environmental restoration process and as required by the CERCLA, five-year reviews and

long-term monitoring of environmental restoration sites may provide convenient

opportunities for the Component to concurrently review LUCs. At that time, the integrity of

the LUCs or layering mechanism can also be checked (e.g., are zoning and land use still

consistent with the use restrictions, are required markers/fences still in place?).

(f) Remedial Action Operation. Reviews of on-going remedies during the remedial action

operation phase provide opportunities for concurrent review of LUCs. For example, when

inspecting a pump-and-treat system, a visual inspection can be made to see that no private

well digging has occurred and no irrigation equipment is in evidence.
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(2) Preventing Land Use Control Violations. DoD expects the transferee and subsequent

owners to abide by the LUCs included in the transfer documents. State or local development and

approval processes, such as zoning, subdivision and site plan approval, site development and

building permitting, should be used to enforce and manage LUCs. This is necessary because the

Component may not be able to enforce LUCs established through the regulatory authority of a

state or local government. Because DoD will no longer have ownership of the property, the

Component should work with the relevant local government agencies and the potential transferee

to ensure their enforcement of LUCs after the transfer of property. Those entities are in the best

position to first become aware of any LUC violation and take action to enforce the use

restrictions. Local government has a responsibility to protect public health and general welfare

through land development review, approval, and permitting processes. In many of these states

with established the LUC management systems, as mentioned above (paragraph 3.c.(1)(a)), the

state provides LUC enforcement.

(3) Modification/Termination of Land Use Controls. Modification or termination of LUCs

may become necessary. This shall be done in accordance with the July 25, 1997, DoD policy

memorandum, Responsibility for Additional Environmental Cleanup After Transfer, the

CERCLA, and state law. DoD will participate in the termination or modification of LUCs in two

scenarios: (1) if a remedy meets its cleanup goals, the Component will modify or terminate the

deed restriction and revise the deed as appropriate; and (2) if a transferee, with the Component’s

prior approval, has cleaned the property to a stricter cleanup standard, the transferee may request

modification or termination of the LUC by the Component. If appropriate, for amendments to

decision document, Components should obtain the same level of applicable review from Federal,

state, or local regulatory agencies as the original decision on establishing a use restriction. The

two scenarios are described below:

Scenario #1. Once the Component determines a remedy has attained its cleanup goals, the

Component, if warranted, should act to modify or terminate the restriction on the property.

This benefits the transferee by making the title more marketable, but also benefits DoD by

terminating remaining LUC requirements and associated costs for the property. The

Component should seek appropriate involvement from the relevant environmental regulators

confirming attainment of the remedial objectives and should then revise the deed restriction

accordingly.

 Scenario #2. If a transferee desires to clean up property to a higher standard that allows

more uses of the property, the transferee must pay for any needed additional studies or

environmental restoration actions. The Component shall also require the transferee to post a

surety bond or some other form of financial assurance to ensure the additional cleanup will be

completed once undertaken by the transferee without the Component needing to pay for it.

After reaching the appropriate cleanup level, the transferee (at its expense) would seek the

necessary involvement from the appropriate environmental regulators confirming the

attainment of the cleanup objectives. Upon providing the property disposal agent with proof

of this regulator’s concurrence, the transferee would prepare a quitclaim deed for the property

disposal agent’s signature, which would relinquish the LUC (i.e., the deed restriction).
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Upon termination of a LUC, it is important to undo the system of mutually reinforcing controls,

if one was put in place, to avoid future confusion about the status of the property. This will

usually require the property disposal agent to provide a one-time notice and direction to all

entities involved in the layering scheme, including recording a release in the appropriate land

records offices for a restriction in the original deed.

d. Records Management. Establishing LUCs is a team effort between the environmental office

and property disposal agent. Tracing the history of LUCs, if questions arise, requires reference to

a combination of environmental and real estate records. The property disposal agent should

maintain a central database of properties with LUCs (transferred or leased property). This

database should include relevant information on the property, types of LUCs established, land

use monitoring and management responsibilities, and the location of real estate records. While

this database is intended for internal Component use in managing their responsibilities,

Components should, to the extent feasible and relevant, make the germane property and LUC

information available for inclusion in an appropriate existing state or local government database

or LUC registry.

To address any future concerns about a property, the Component should retain the

following types of real estate related records:

♦ Finding of Suitability for Transfer

♦ Environmental Baseline Study (the applicable portion is generally included in the FOST)

♦ Purchase Agreement

♦ Deed

♦ Cooperative Agreement, or similar documents that specify LUC management responsibilities.

The environmental restoration information that may be required will be contained in the

Administrative Record required by the CERCLA. However, Component environmental offices

should modify their database of environmental restoration sites to track any continuing

environmental restoration responsibilities (e.g., five-year reviews and long term monitoring) and

relevant information such as the cleanup level and risk assumption scenario (e.g., industrial,

commercial, recreational).
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Department of Defense Guidance on Land Use Controls

Associated with Environmental Restoration Activities for Active Installations

1. PURPOSE.

This document provides DoD Components with environmental restoration and land use

management responsibilities guidance on the use of available installation land use planning and

management tools for implementing, documenting, and managing land use controls (LUCs) for

real property at active installations. This guidance is based on Department of Defense (DoD)

Policy on Land Use Controls Associated with Environmental Restoration Activities. LUCs

include any physical, legal, or administrative mechanism that places restrictions on the use of, or

limits access to, real property to prevent exposure to contaminants above permissible levels. The

intent of using these controls is to protect the integrity of the engineering remedy (if present) and

human health and the environment by limiting the activities that may occur at a particular site.

Components control land use at active installations and can internally restrict the use of

such property. Consequently, this guidance provides different mechanisms to implement and

manage LUCs than those used for property being transferred out of Federal control. For

example, this guidance does not provide for the use of deed restrictions to restrict property

because deed restrictions cannot be created without a conveyance and property is not being

transferred at active installations. Furthermore, Federal real property policy generally does not

permit creation of deed restrictions by a land holding agency, such as a DoD Component. As a

practical matter, even if deed restrictions could be placed on active installation property, deed

restrictions would not be effective for notifying installation personnel of the existence of land use

controls because deed restrictions are recorded in the local land records office and title searches

are typically not performed when making land use decisions at active installations. Therefore,

for Federal land remaining under Federal ownership and control, alternative methods for

institutionalizing LUCs are required.

The intent of this guidance is to provide for the protection of human health and the

environment by ensuring the compatibility of land use at active installations with any restrictions

imposed on the property during the environmental restoration process. This guidance permits

flexibility in tailoring and using specific tools and processes at the installation-level, rather than

dictating a specific set of measures for use.

2. APPLICABILITY AND SCOPE.

a. Active Installations. This guidance applies to real property at active installations in the

United States and U.S. territories. The guidance applies whenever a decision to restrict land is

made as part of the environmental restoration process.

b. Leased Property. This guidance also applies to installation property leased to third parties.

(In such a situation, in addition to the process outlined below, the Component should inform the
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lessee of the existence of the LUCs and make the lessee's compliance with the LUCs a binding

condition of the lease.)

c. Exclusions.

(1) Civil Works Property. This guidance does not apply to U.S. Army Civil Works properties.

(2) Federal Agency-to-Agency Transfers. For Federal agency-to-agency transfers (including

transfers between Components), the receiving agency will generally be responsible for the

monitoring, enforcement, maintenance, and management of LUCs. Components transferring the

property need to consider the long-term fiscal and legal consequences of retaining any LUC or

property management responsibility in choosing to retain specific responsibilities. While this

guidance does not apply to property upon transfer to a non-DoD agency, the Component

transferring the property should inform the receiving agency of LUCs on the property, and the

need to inform the local government about LUC matters that may affect adjacent non-Federal

property.

(3) Transferring Property. For guidance on implementing land use controls for surplus property

being transferring out of Federal control, refer to DoD Guidance on Land Use Controls

Associated with Environmental Restoration Activities for Property Planned for Transfer Out of

Federal Control.

3. GUIDANCE. The guidance below outlines the process for implementing, documenting,

managing, and terminating LUCs at active installations.

a. Implementing Land Use Controls. Once a decision has been made in consultation with the

supporting land use planning/management office to place limitations on the use of DoD real

property due to environmental restoration concerns, the installation shall develop an

implementation plan for LUCs. The implementation plan is an internal management tool that

explains how LUCs will be established and documented. It also defines who will be responsible

for maintaining and managing them. The implementation plan should be incorporated into the

Installation Master Plan or its equivalent. At a minimum, the implementation plan shall describe

the location of the land subject to the LUC; explain the LUC (e.g., restrictions on excavation, use

of groundwater) and generally allowed uses (e.g., equipment storage, recreation); and specify the

duration of the LUC. The plan shall also provide for modifications to the LUC as site conditions

change (e.g., if the remedial action improves the groundwater quality). The plan should specify

the frequency and requirements of LUC inspections and indicate whether any of these inspections

are part of the inspection process for other environmental programs (e.g., internal or external

environmental audits).

Implementation of LUCs also involves coordination among the installation personnel

responsible for maintaining certain resources. The office that drafts the land use control

implementation plan should coordinate with the other affected entities. For example, if the LUCs

involve a prohibition on the use of groundwater, then the office that manages groundwater
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resources should be informed of the LUC; or if the LUCs include a restriction on soil use in a

particular area on the installation, construction and maintenance personnel should be informed.

b. Documenting Land Use Controls. Whenever a decision has been made to restrict land use

at active installations, the decision document, such as a Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA) Record of Decision (ROD) or Action

Memorandum, should generally explain the restricted uses of the property.

Because LUCs on active installations are not recorded in deeds, Components must use

their own systems and processes for recording LUCs. The installation shall incorporate LUCs

into the existing land use planning and management systems routinely used at the installation for

planning and construction decisions. A combination of common mechanisms, discussed below,

and other available tools should be used to effectively track and manage LUCs at the installation.

 (1) Geographic Information Systems (GIS)/Overlay Maps. Computerized maps can depict an

installation's historic structures, wetlands, utility systems, and other information as layers for

purposes of visual display and analysis. LUCs should be appropriately incorporated into these

systems.

(2) Installation Master Plan. The Installation Master Plan (sometimes called the Base

Comprehensive Plan or General Plan) is used for land use and construction project planning.

The installation should incorporate LUCs into appropriate sections of the Master Plan to allow

for routine consideration of LUCs in making land use and planning decisions. If the Master Plan

is GIS-based, a separate layer should be specifically created for LUC information. In addition,

the LUC should be recorded on any installation plat.

(3) Installation Offices. LUCs should also be filed with the installation offices that are

responsible for managing the buildings and grounds, utility systems, and construction. The

installation contract and real estate/real property offices should also have LUCs on file so that

contracts and outgrants can reflect LUCs as appropriate.

c. Maintaining Land Use Controls. The effectiveness of LUCs may depend on routine

maintenance activities, such as mowing the grass to keep site markers visible and maintaining

fences around controlled access areas. It is also dependent on incorporating the maintenance of

the LUC into the existing processes of the installation. Some LUCs may be short-term and last

only as long as an ongoing environmental restoration system is in place; other LUCs may need to

remain in place for a longer period. To ensure that LUCs remain effective and to provide

flexibility, this section provides a range of options to use separately or collectively, depending on

the type of LUCs, site conditions, and installation processes available.

(1) Site Approval Process. The site approval process is the process for reviewing and approving

excavation and construction projects, as well as other land use changes at the installation. To

ensure the integrity of the controls and to prevent violations, consideration of LUCs should be

incorporated into this process. This could involve reviewing the GIS layer that depicts the LUCs

as part of a site/construction approval process.
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(2) Markers. Installations may identify areas of restricted use by placing permanent markers

around the perimeter of the restricted area. The offices (and/or contractor personnel) responsible

for grounds maintenance, construction, and safety should be notified of the existence of these

markers, instructed as to their purpose, and directed to inform appropriate officials if the markers

are displaced or unauthorized use occurs.

(3) Inspections. The inspection of LUCs should become part of existing inspections conducted

at the installation. Depending on the type of LUCs, these inspections could include a visual

check to ensure that proper maintenance of LUCs is taking place.

(4) Environmental Self-Audit. Evaluating and verifying LUCs should be part of the

Component’s environmental audit and self-inspection program, and should be incorporated into

the self-audit checklist and required report.

(5) Training. Installations should provide training to personnel, such as grounds, maintenance,

real estate/real property, and contractor personnel, regarding the physical location of LUCs and

how to care for property subject to LUCs. These personnel should also be informed of allowed

and restricted activities.

(6) Internal Notice. The relevant office (e.g., Planning, Facilities, Engineering) should

periodically send out a notice to other affected offices to serve as a reminder of the existence of

LUCs.

(7) Five-Year Reviews and Remedial Actions. Where performed as part of the environmental

restoration process and as required by the CERCLA, five-year reviews and long-term monitoring

of environmental restoration sites conducted to assess remedy effectiveness may provide a

convenient opportunity for the installation to concurrently review LUCs.

In addition, the installation should inspect LUCs as part of a review of ongoing CERCLA

remedial actions. For example, when inspecting a pump-and-treat system, checks can be made to

see that that no well digging and/or irrigation equipment is present.

d. Addressing Land Use Control Non-Compliance. If, during an installation inspection or

through some other process, it becomes apparent that a LUC is being violated, appropriate

installation officials should be notified immediately. These officials should take steps to ensure

the integrity of the LUC is restored, including any required notifications and corrective actions.

In addition, it may be useful to coordinate responsibility for LUC management with installation

occupational safety and public safety offices to include LUCs in their regular inspections of, and

patrols on, the installation property and activities.

e. Land Use Compatibility. At active installations, use of an area containing LUCs may

change. The installation must ensure land use remains compatible with the LUC. The

installation should institute a process to review and evaluate the effect on human health and the
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environment of any proposed land use changes. This process, conducted in consultation with the

appropriate environmental restoration office, should seek to answer the following questions:

♦ Is the proposed land use inconsistent with the exposure scenario outlined in the risk

assessment?

♦ Will the land use change adversely affect the effectiveness of the selected site remedy?

♦ Will the need for any additional remedial actions arise as a result of the implementation of

the land use change?

If the answer to any of the above questions is yes, the appropriate process required by

environmental regulations and guidance to revise the site remedy, which may require

consultation with environmental regulatory agencies, must be followed. This includes

reassessing the decision document to determine if an amendment is required for the proposed

land use change.

f. Modifying/Terminating Land Use Controls. When the remedy meets the cleanup goals, the

installation may need to modify or terminate the LUCs. If, upon meeting the cleanup goal, land

use may be unrestricted, the LUC shall be terminated. If some LUCs no longer apply and some

are still required, the LUC implementation plan shall be modified to reflect what restrictions still

apply.

LUCs at active installations should be modified or terminated through the same process

used to establish the LUC, and if terminated, deleted from the documentation mechanisms

discussed in this guidance. Installation personnel should refer to the land use control

implementation plan, which identifies where LUCs are documented. Additionally, decision

documents should be assessed to determine if amendments to decision documents are required by

modification/termination of LUCs. Regulatory agencies generally need to be involved in

amending the environmental restoration decision document to the same extent as they were in the

original decision document.

g. Records Management. LUCs are established and implemented through environmental and

land use management processes; consequently, tracing the origin of LUCs requires a combination

of these records. LUC records need to be retained by the installation so it will have sufficient

information to determine if land use changes can be made in the future. The LUC

implementation plan (discussed above) should reference the location of the pertinent LUC

records including, but not limited to, the Record of Decision, Feasibility Study, Installation

Master Plan, or any of the other systems used to record LUCs.

The environmental restoration information that may be required will be contained in the

Administrative Record required by the CERCLA. However, Component environmental offices

should modify their database of environmental restoration sites to track any continuing

environmental restoration responsibilities (e.g., five-year reviews and long term monitoring) and

relevant information such as the cleanup level and risk assumption scenario (e.g., industrial,

commercial, recreational).