DISCLAIMER

The template deed restrictions you are about to access are sample documents that were developed by the US Army Corps of Engineers (Corps) and the Kentucky Energy and Environment Cabinet, Department of Environmental Protection, Division of Water (Cabinet). The terms and conditions contained within these documents provide the baseline terms and conditions for acceptance by the Corps and Cabinet when used in conjunction with an application for a Department of the Army (DA) permit pursuant to Section 10 of the Rivers and Harbors Act (33 U.S.C. §403) and/or Section 404 of the Clean Water Act (33 U.S.C. §1344) and for a Water Quality Certification (Certification) issued by the Cabinet, in accordance with Section 401 of the Clean Water Act (33 U.S.C. §1341) and Section 224.16-050 of the Kentucky Revised Statutes. It may or may not serve the needs of any particular applicant for a DA permit and Certification in Kentucky and does not constitute legal, accounting, or tax advice. Formally completed conservation instruments are intended to be recorded, enforceable legal instruments. All persons considering using this instrument are encouraged to obtain the services of an attorney licensed to practice law in the Commonwealth of Kentucky.

INSTRUCTIONS

If you select to use this template, the template should be filled out as described below and submitted as a draft instrument with the necessary exhibits to the US Army Corps of Engineers and Kentucky Energy and Environment Cabinet, Department of Environmental Protection, Division of Water for review and approval as part of the application process for a Department of the Army (DA) permit pursuant to Section 10 of the Rivers and Harbors Act (33 U.S.C. §403) and/or Section 404 of the Clean Water Act (33 U.S.C. §1344) and for a Water Quality Certification (Certification) issued by the Cabinet, in accordance with Section 401 of the Clean Water Act (33 U.S.C. §1341) and Section 224.16-050 of the Kentucky Revised Statutes.

The following notes provide directions for filling in specific information contained in the template. As you go through the template you will find fields where text needs to be inserted or selected. These fields are in grey font and provide basic directions on what needs to be done. If when you click on the field and the tab says “See Instructions Note #” refer back to these instructions for directions on how to fill that field in.

Note 1 – Date of Declaration: There are three fields in the template associated with the date. The first field is for the day, the second is for the month, and the third is for the year. If you know what date the Declaration will be executed on when the document is printed for signature you may select the day and month from the drop down list and insert the year. If you are uncertain of the date the Declaration will be executed when you print the document for signature select the blank option (____) for the day and month and insert a blank (______) for the year. The date may then be filled in at the time of execution.

Note 2 - County Name: There are multiple locations in the document where the name of the County in which the property is located needs to be entered. In all locations enter only the name of the County. For example if the property were located in Jefferson County, KY, the word Jefferson should be entered in the text field.

Note 3 – Insert one or more of the following in the text box: platted survey, approved permit drawings, or site plan.

Note 4 – Insert the permit number assigned by the U.S. Army Corps of Engineers’ District (i.e. LRL-0000-00000) to the project the Declaration of Restrictive Covenants is associated with.

Note 5 – Insert the Water Quality Certification number (i.e. 0000-0000-0) assigned by the Kentucky Energy and Environment Cabinet, Department of Environmental Protection, Division of Water to the project the Declaration of Restrictive Covenants is associated with.

Note 6 – There are two text boxes associated with this note. In the first text box insert one or more of the following: restore, create, rehabilitate, establish, re-establish, enhance, or preserve. In the second text box insert one or more of the following: aquatic habitats, riparian areas, buffers, and uplands. The information inserted should be consistent with the type of mitigation described in the mitigation plan associated with the Department of Army Permit and Water Quality Certification.

Note 7 – Enter the type of document that will be used to show the natural condition of the Property. The document needs to show all relevant property lines, all existing man-made improvements and features, and major, distinct natural features such as waters of the United States. There are four options which are commonly used that may be selected from the drop down menu—1) platted survey, 2) permit drawing, 3) site plan, or 4) permit drawing and site plan. If you want to use a type of document that is not listed, you may click on the field and type in the type of document.

Note 8 – In order to fill in this field, the liens, loans, claims, restrictions, easements and encumbrances that are on the property and the other interests in the property will need to be identified. Once identified, there are two paragraphs in a drop down box to select from.

A. The Declarant is the sole owner of the Property and holds fee simple title which is free and clear of any and all liens, loans, claims, restrictions, easements and encumbrances, except as otherwise identified in Exhibit C hereto;

A. To the extent that other interests in the Property exist, the holders of such interests have agreed to subordinate their interests in the Property to this Declaration, pursuant to the subordination agreement(s) attached hereto as Exhibit C;

Select the first paragraph if the only encumbrances are utility easements. Select the second paragraph if there are interests other than utility easements.

Note 9 – The address listed for the Corps should be the address for the District Office responsible for the Department of the Army permit. Insert the appropriate Corps address from the following list:

Louisville District – South Section:

U.S. Army Corps of Engineers

OP-FS, Room 752

P.O. Box 59

Louisville, KY 40201-0059

Louisville District – West Section

U.S. Army Corps of Engineers

Newburgh Regulatory Office

6855 State Road 66

Newburgh, IN 47630-9794

Memphis District

U.S. Army Corps of Engineers, Memphis District

ATTN: Regulatory Office

167 N. Main Street, Room B-202

Memphis, TN 38103-1894

Nashville District

U.S. Army corps of Engineers

Nashville District, Regulatory Branch

3701 Bell Road

Nashville, TN 37214

Note 10 – If the Declaration is being made by a business entity enter the name of the individual signing the Declaration on behalf of the Declarant in the first field and the title of that individual in the second field. If the Declaration is being made by an individual enter the name of the Declarant in the first field and enter a space in the second field to leave the field blank.

Note 11 – The individual who prepared the instrument, providing the necessary information within this document is termed the “preparer” and is required to provide their address and signature pursuant to KRS 382.335.

THIS DECLARATION OF RESTRICTIVE COVENANTS FOR CONSERVATION is made this Select the day of the month. day of Select the month., Click here to enter year., by Click here to enter Declarant’s name and address. (“Declarant”).

RECITALS

WHEREAS, Declarant is the sole owner in fee simple of certain real property located in Click here to enter County name. County, Kentucky, as described in Deed Book Click here to enter deed book number., Page Click here to enter page number., in the Office of the Click here to enter County Name. County Clerk, and as more particularly described in legal description attached hereto as Exhibit A and shown on the See Instructions Note 3 and then click here to enter text. attached hereto as Exhibit B, both of which are incorporated herein by reference (“Property”);

WHEREAS, the discharge of dredged and/or fill material into jurisdictional waters of the United States, including wetlands and streams, pursuant to Sections 401 and 404 of the Clean Water Act, requires compensatory mitigation; and

WHEREAS, as compensatory mitigation under Federal and State law for and in consideration of Department of the Army Permit No. Click here to enter DA Permit number. (“Permit”) issued by the U.S. Army Corps of Engineers, [Louisville, Memphis, or Nashville] District (“Corps”) pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344) and/or Section 10 of the Rivers and Harbors Act (33 U.S.C. §403), and Water Quality Certification No. Click here to enter Certification number. (“Certification”) issued by the Kentucky Energy and Environment Cabinet, Department of Environmental Protection, Division of Water (“Cabinet”), in accordance with Section 401 of the Clean Water Act (33 U.S.C. §1341) and Section 224.16-050 of the Kentucky Revised Statutes and in recognition of the continuing benefit to the permitted property, and for the protection of waters of the United States and scenic, resource, environmental, and other conservation values, Delarant has agreed to See Note 6 and then click here to enter text. See Note 6 and then click here to enter text. and place certain restrictive covenants on the Property in order that the Property shall remain substantially in its natural condition forever, and to grant a right of access and entry to the Property;

NOW THEREFORE, in consideration of the benefits to be derived by the Delarant and each and every subsequent owner and occupant of the Property, and as required mitigation for the discharge of dredged and/or fill material into waters of the United States, as authorized by the Permit and Certification, Declarant hereby makes this Declaration on the terms and conditions stated below.

Purpose. The purpose of this Declaration of Restrictive Covenants is to restrict the current and future use of the Property in perpetuity in order to protect aquatic resource functions and values, scenic, resource, environmental, and other conservation values, and conservation functions and ecological services; to establish the Property as open, common, and undeveloped conservation area; and to preserve the natural condition of the Property in perpetuity.

Covenant Running with the Land. Declarant hereby declares that the Property shall be bound by, held, transferred, sold, conveyed, leased, improved, hypothecated, occupied or otherwise disposed of and used subject to the following restrictive covenants, which shall be perpetual and run with the land and be binding on all the Declarant’s heirs, executors, administrators, successors, assigns (which are included in the term “Declarant” below), lessees, or other persons, firms, associations, corporations, or governmental or other entities having or hereafter acquiring any right or interest in said Property or any part thereof. The terms and conditions of the following restrictive covenants shall be both explicitly and implicitly included in any subsequent transfer, conveyance, or encumbrance affecting all or part of the Property. Any such transfer, conveyance or encumbrance shall set forth the terms and conditions of this document by reference to this document and its recorded location in accordance with paragraph 9 of this Declaration.

Definitions.

Natural Condition. The term “natural condition” shall mean the condition of the Property at the time of the declaration and as restored, created, enhanced, and preserved pursuant to the Mitigation Plan. The natural condition shall be evidenced in part by See Note 7 and then choose an item or type in text. all relevant property lines, all existing man-made improvements and features, and major, distinct natural features such as waters of the United States and is attached hereto as Exhibit C. The natural condition of the Property may also be evidenced by:

A current aerial photograph of the Property at an appropriate scale taken as close as possible to the date the declaration is made; and

On-site photographs taken at appropriate locations on the Property, including major natural features.

Mitigation Plan. The term “Mitigation Plan” shall mean the plan approved by the Permit and Certification.

Restrictions/Prohibitions. Any activity on, or use of, the Property, which is or may become inconsistent with the purposes of this Declaration is prohibited. Without limiting the generality of the foregoing, the following activities are expressly prohibited except as provided for in the Declarant’s Reserved Rights:

General/Topography. There shall be no filling, flooding, cultivating, excavating, earthmoving, grading, mining or drilling; no removal of natural materials; no dumping of materials; and no alteration of topography in any manner.

Waters and Wetlands. There shall be no draining, ditching, diking, dredging, channelizing, damming, pumping, or impounding; no changing the grade or elevation, impairing or diverting the flow or circulation of waters, or reducing the reach of waters; and no other discharge or activity requiring a permit under applicable clean water or water pollution control laws and regulations, as amended.

Trees/Vegetation. There shall be no clearing, burning, cutting, mowing or destroying of trees or vegetation.

Non-Native/Exotic Species. There shall be no introduction of non-native or exotic species to the Property.

Uses. There shall be no agricultural, commercial, or industrial activity undertaken or allowed on the Property, including but not limited to grazing and mining. There shall be no horseback riding, whether on or off an established trail.

Structures. There shall be no construction, erection, or placement of buildings, billboards, signs, or any other temporary or permanent structure, nor any additions to existing structures.

Roads. There shall be no construction or building of new roads, trails, or other rights of way without the prior written approval by the Corps and Cabinet.

Off Road Vehicles. There shall be no use of off road vehicles, 4-wheel drive vehicles, all terrain vehicles, snowmobiles, or other types of motorized recreational vehicles except on existing roads and except as necessary to manage the Property.

Utilities. There shall be no construction or placement of utilities or related facilities without the prior written approval of the Corps and Cabinet.

Waste. There shall be no placement of refuse, wastes, sewage, dredged spoil, solid waste, incinerator residue, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, or industrial, municipal, or agricultural waste on the Property.

Pest Control. There shall be no application of pesticides or biological controls, including but not limited to insecticides, fungicides, rodenticides and herbicides, without prior written approval from the Corps and Cabinet.

Reserved Rights. Notwithstanding the foregoing Restrictions, the Declarant reserves for itself, its heirs, executors, administrators, successors and assigns the right to use the Property for all purposes not inconsistent with the purposes of these restrictive covenants. Further, the Declarant expressly reserves for itself, its heirs, executors, administrators, successors, and assigns the following rights, which may be exercised upon providing 30 days prior written notice to the Corps and Cabinet, except where expressly provided otherwise:

Wildlife and Forestry Management. Declarant reserves the right to naturally manage the Property to preserve and improve the existing forest and wildlife resources. Declarant reserves the right to remove or trim vegetation hazardous to persons or property, and harvest and manage timber downed or damaged due to natural forces, such as fire, storms, insects, or infectious organisms, to the extent necessary to protect the environment. Such management activities shall be carried out only after approval by the Corps and Cabinet and in accordance with Best Management Practices as set out by the U.S. Forest Service or the Kentucky Division of Forestry.

Landscape Management. Declarant reserves the right to undertake landscaping necessary to prevent severe erosion or damage to the Property or portions thereof, or significant detriment to existing or permitted uses, to the extent such landscaping is consistent with preserving the natural condition of the Property. Such management activities shall be carried out only after approval by the Cabinet.

Recreation. Declarant reserves the right to engage in outdoor, non-commercial recreational activities, including hunting, fishing, and similar recreational or educational activities, consistent with cumulatively very small impacts and with the continuing natural condition of the Property, but excluding planting and burning. No prior written notice to the Corps and Cabinet is required.

Road Maintenance. Declarant reserves the right to maintain existing roads, trails, or other rights of way. Maintenance shall be limited to: removal or pruning of dead or hazardous vegetation; application of permeable materials (e.g., sand, gravel) necessary to correct or impede erosion; grading; replacement of culverts, water control structures, or bridges; and maintenance of roadside ditches.

Signs. Signage, such as that directed by the U.S. Army Corps of Engineers’ permit and the Kentucky Division of Water’s Water Quality Certification, shall be erected and remain on site in legible condition. Signage may include boundary markers identifying the area as a Mitigation Property and a protected area. Signage may convey information on restricted use of the Mitigation Property, including “no trespassing” signs, “no mowing” signs, temporary signs indicating the Property is for sale, educational signs identifying the trees, vegetation, wetlands or conservation ecological services of the Mitigation Property, and signs identifying the owner.

Mitigation Measures. Declarant reserves the right to undertake restoration and mitigation measures required under the Mitigation Plan or otherwise required under law.

Rights of Access and Entry. The Declarant grants the Corps, Cabinet and their authorized agents an irrevocable and assignable right to enter in, on, over and across the Property to inspect and monitor the Property; to implement the Mitigation Plan or take corrective measures under the Mitigation Plan; to take any actions necessary to maintain or restore the natural condition of the Property; or to take any actions necessary to verify compliance with these restrictive covenants. No rights of access or entry to or use of any portion of the Property is granted or conveyed to members of the general public by these restrictive covenants.

Enforcement. The Declarant grants the Corps and the Cabinet, as third party beneficiaries hereof, a discretionary right to enforce these restrictive covenants in a judicial action against any person or other entity violating or attempting to violate these restrictive covenants; provided, however, that no violation of these restrictive covenants shall result in forfeiture or reversion of title. In any enforcement action for violations of this Declaration, an enforcing agency shall be entitled to complete restoration of the Property for any violation, as well as any other remedy available under law or equity, such as injunctive relief and administrative, civil or criminal penalties. No omission or delay in acting by the Corps and/or Cabinet shall bar subsequent enforcement rights or constitute a waiver of any enforcement right. These enforcement rights are in addition to, and shall not limit, enforcement rights available under other provisions of law or equity, or under any applicable permit or certification. Nothing herein shall limit the right of the Corps to modify, suspend, or revoke the Permit. Nothing herein shall be construed to authorize the Corps or Cabinet to institute proceedings against the Declarant for changes to the Property due to acts of God, natural disasters, or unauthorized acts of third parties outside the control of the Declarant, so long as the compensatory mitigation is completed and determined by the Corps and Cabinet to be successful in accordance with the Mitigation Plan.

Notice to Government.

Any permit application, or request for certification or modification, which may affect the Property, made to any government entity with authority over wetlands or other waters of the United States, shall expressly reference and include a copy (with the recording stamp) of these restrictive covenants.

The Declarant shall provide the Corps and Cabinet with written notice of any legal action affecting this Declaration, including but not limited to foreclosure proceedings, tax sales, bankruptcy proceedings, zoning changes, adverse possession, abandonment, condemnation proceedings, and the exercise of the power of eminent domain. For any action that might result in this Declaration being voided or modified, such notice shall be provided at least 60 days before such action would be taken.

Property Transfers. The Declarant shall include the following notice on all deeds, mortgages, plats, or any other legal instrument used to convey any interest in the Property:

NOTICE: This Property is subject to a Declaration of Restrictive Covenants for Conservation dated _____, recorded in the Click here to enter County name. County Clerk’s Office on _______ in Deed Book _____, Page _____ and enforceable by the U.S. Army Corps of Engineers and Kentucky Energy and Environment Cabinet, Department of Environmental Protection, Division of Water.

The Declarant shall provide the Corps and Cabinet with written notice of any transfer 60 days prior to such transfer. The notice shall include the name, address, and telephone number of the prospective transferee, a copy of the proposed deed or other documentation evidencing the conveyance, and a survey map that shows the boundaries of the portion of the Property being transferred. Failure to comply with this paragraph does not impair the validity or enforceability of these restrictive covenants.

Warranties.

The Declarant represents and warrants that:

A. Choose an item.

B. The Declarant has identified all other parties that hold any interest (e.g. encumbrances) in the Property and has notified such parties of the Declarant’s intent to grant this Declaration;

C. This Declaration will not materially violate or contravene or constitute a material default under any other agreement, document, or instrument to which the Declarant is a party, or by which the Declarant may be bound or affected;

D. This Declaration will not materially violate or contravene any zoning law or other law regulating use of the Property; and

E. This Declaration does not authorize a use of the Property that is otherwise prohibited by a recorded instrument that has priority over the Declaration.

The Declarant represents and warrants that, to the best of its knowledge:

No substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, or regulation, as hazardous, toxic, polluting, or otherwise contaminating to the water or soil, has been released, generated, treated, stored, used, disposed of, deposited, abandoned, or transported in, on, from, or across the Property;

There are no underground storage tanks located on the Property whether presently in service or closed, abandoned, or decommissioned;

The Property is in compliance with all federal, state, and local laws, regulations, and permits and there is no pending or threatening litigation in any way affecting, involving, or relating to the Property and its use; and

The Property is not land-locked and there is access to the Property by road, dedication of pathway or by an access easement.

Notification. Any notice, request for approval, or other communication require by these restrictive covenants shall be sent by registered mail, pre-paid postage, to the following addresses (or such addresses as may be hereinafter specified by notice pursuant to this paragraph):

To Declarant: Click here to enter Address.

To Corps:	Click here to enter the address of the appropriate Corps’ District.

To Cabinet:

200 Fair Oaks Lane, Fourth Floor

Frankfort, KY 40601

Attn: Water Quality Certification Section Supervisor

Amendment. After recording, these restrictive covenants may only be amended by a recorded document signed by the Corps, Cabinet, and Declarant. Amendment shall be allowed at the discretion of the Corps and Cabinet, in consultation with resource agencies as appropriate, and then only in exceptional circumstances. Any amendment must be consistent with the requirements of Sections 401 and 404 of the Clean Water Act. There shall be no obligation to allow an amendment.

Termination. This Declaration is intended to be perpetual in nature and run with the land as set forth in paragraph 1 of this Declaration. However, if the Corps and Cabinet determine that the compensatory mitigation undertaken on the Property set forth in the Mitigation Plan is not successful and the alternative mitigation identified does not involve the Property, then the Declarant, Corps, and Cabinet may terminate this Declaration by written agreement.

Recording. Declarant shall record this Declaration in the official property records of the Office of the Click here to enter County name. County Clerk within thirty (30) days of execution of this Declaration by the Declarant, and shall, within thirty (30) days of recording, provide the Corps and the Cabinet with a copy of the recorded Declaration and exhibits. Declarant may re-record this instrument at any time as may be required to preserve its rights.

Successors in Interest. All references to the Corps and the Cabinet shall include successor governmental agencies, departments, or divisions, or any other successor entities prescribed by law.

Severability Provision. Should any separable part of these restrictive covenants be held contrary to law, unenforceable, or void, the remainder shall continue in full force and effect.

IN WITNESS WHEREOF, the Declarant has duly executed this Declaration effective on the date first written above, but actually on the date set forth below.

DECLARANT

By: ____________________________

[Type name Under Line]

_____________________________

[Type Title]

_____________________________

Date

PREPARER:

By: ____________________________

Click here to enter name.

____________________________

Preparer’s Address

_____________________________

Date

COMMONWEALTH OF KENTUCKY

COUNTY OF Click here to enter County name.

Subscribed and sworn to before me by _____________________ this the ____ day of _____________, _____.

______________________________

NOTARY PUBLIC

My Commission Expires: _______________