Or. Admin. R. 141-123-0050 - Easement Application Review and Approval Process

(1) Department staff may require a meeting to discuss a proposed project and use before performing an application completion review. This meeting may be in person or through other means acceptable to the Department. The Department may invite other government entities and affected stakeholders to take part in an application meeting.

(2) Upon receipt of an application, and the completion of an application meeting if necessary, the Department will determine whether it is complete. Applications determined to be incomplete will be returned to the applicant with a written explanation of the reason(s) for rejection.

(3) If a rejected application is resubmitted within 120 calendar days from the date the Department returned it to the applicant, no additional application fee will be assessed.

(4) If determined by the Department to be complete, the application will be circulated to affected local, state, and federal agencies; Holders of valid authorizations granted by the Department in the requested area; and other interested persons including federally recognized tribal governments and ports for review and comment. As a part of this review, the Department will specifically request comments concerning:

(a) The presence, type and location of state or federal listed threatened and endangered species (including candidate species), and archeological and historic resources within the requested area which may be disturbed by the proposed use;

(b) Whether the proposed easement use:

(A) Conforms with other local, state, and federal law and rules;

(B) Conforms with the local comprehensive land use plan and zoning ordinances;

(C) Conforms with the general provisions described in OAR 141-123-0020 of these rules; and

(D) Would unreasonably impact uses or developments proposed or already in place within the requested area.

(5) The Department may post a notice of an application and opportunity to comment at a local government building, public library, or other appropriate locations in order to ensure that minority and low-income communities are included and aware of a proposed use. The Department shall make paper copies of an application available to any person upon request.

(6) The Department may waive the circulation requirement described in OAR 141-123-0050(4) if:

(a) The use or development has been previously reviewed by the listed agencies and other interested persons, and the results are documented in the easement application;

(b) The application is for an easement associated with the right to use water and the Water Resources Department is conducting or has conducted a public interest review sufficient to make the determinations required by OAR 141-123-0050(4); or

(c) The application is for an easement for an energy facility that has been granted a site certificate by the Energy Facility Siting Council under ORS 469.300 et seq. and OAR 345-022, et seq. (Regulation of Energy Facilities), in which case the Department will accept the findings and conclusions of the Energy Facility Siting Council in evaluating the easement application over Non-Trust Land.

(7) An applicant for an easement may be required to amend their application at any time to address issues, concerns, or information needs identified by the Department or others that provided comments.

(8) After receipt of agency and public comment concerning the proposed use, the Department will determine, and advise the applicant in writing if:

(a) Changes to the requested easement area are necessary to respond to agency or public comment;

(b) Additional information is required from the applicant, including but not limited to a survey of:

(A) State or federal listed threatened and endangered species (including candidate species) within the requested area; or

(B) Archaeological and historic resources within the requested area.

(c) The request is denied. Applicants will be given the opportunity to revise their proposed project if the Department denies the request; or

(d) The easement will be granted with specific terms and conditions.

(9) If the Department decides to grant the easement, the written notification will also indicate:

(a) The amount of compensation pursuant to the requirements of OAR 141-123-0060 that the applicant must remit to the Department to obtain the authorization;

(b) Any surety bond amount required by the Department pursuant to the provisions of OAR 141-123-0070(13); and

(c) The easement terms and conditions.

(10) The Department will not grant an easement to an applicant until it has received all fees and compensation specified in these rules, and evidence of a surety bond (if required). However, the Department, at its discretion, may grant a provisional easement prior to receipt of compensation due for removal of timber, sand and gravel, or other natural resources in the easement area if the fair market value of those resources is based on actual receipts from their sale.

(11) The Director may refer unusual or controversial easement applications to the State Land Board for review and approval.

(12) If requested by the Department, an applicant must present evidence to the Department prior to placing the use or development that they have obtained:

(a) All authorizations required by local, state, and federal governing bodies to undertake the proposed use or development; and

(b) Any authorization that may be required to obtain access to, or to cross land belonging to a person other than the Department to undertake the use or development.

Notes

Or. Admin. R. 141-123-0050

DSL 1-2019, adopt filed 01/08/2019, effective 1/8/2019

Statutory/Other Authority: ORS 273.045

Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010