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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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DEPARTMENT OF STATE LANDS

 

DIVISION 83

RULES FOR GRANTING EASEMENTS FOR FIBER OPTIC
AND OTHER CABLES ON STATE-OWNED SUBMERGED
AND SUBMERSIBLE LAND WITHIN THE TERRITORIAL SEA

 

141-083-0800

Purpose and Applicability

These rules:

(1) Govern the granting and renewal of easements for fiber optic and other cables on state-owned submerged and submersible land within the Territorial Sea.

(2) Establish a process for authorizing easements for such cables.

(3) Supersede any provisions contained in OAR 141-083-0010 through 141-083-0700 relating to fiber optic and other cables within the Territorial Sea.

(4) Do not apply to landing structures or other equipment related or connected to the cable placed on state-owned upland. Such uses are governed by, and require forms of authorization stipulated in other agency rules.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0810

Policies

(1) The placement of fiber optic and other cables on state-owned land within the Territorial Sea is recognized by the Division as a conditionally allowable use of that land, subject to and consistent with the requirements and provisions of applicable international treaties (for example, the Convention for the Protection of Submarine Cables of 1884; the Convention of the High Seas of April 1958; the Convention on the Continental Shelf of April 1958; and the Submarine Cable Act) and other applicable federal, state, and local laws.

(2) The State Land Board, through the Division, has a constitutional responsibility to manage "the lands under its jurisdiction with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management" pursuant to Article VIII, Section 5(2) of the Oregon Constitution.

(3) The Division shall manage state-owned submerged and submersible land, including that within the Territorial Sea, to ensure the collective rights of the public to fully use and enjoy this resource for commerce, navigation, fishing, recreation, and other related public purposes consistent with applicable federal and state laws.

(4) Easements for cables shall be located so as to:

(a) Protect the public trust values of commerce (including fiber optic and other cable transmissions), navigation, fishing, and recreation;

(b) Conserve living marine and other seabed resources; and

(c) Avoid or reduce conflicts with other ocean users and industries.

(d) Comply with all applicable local, state, and federal laws including Statewide Planning Goal 19.

(5) The Division shall administer these rules to ensure to the greatest extent possible that:

(a) Persons applying for, and holding a cable easement receive timely, consistent, predictable, and fair treatment; and

(b) Public trust values (commerce, navigation, fishing, and recreation) are supported, protected and enhanced.

(6) The Division may require the placement of cables along a route that has been determined by the agency, after consultation with the easement applicant, affected state and federal agencies, and other interested persons, to best meet the policies and goals of these rules.

(7) The Division shall require that all cables be buried using the best available proven technology whenever Territorial Sea bottom conditions permit to a sufficient depth to minimize conflicts with other ocean users and industries, and recognizing the potential need to retrieve the cable for repair or removal.

(8) The Division shall not recommend approval of a cable easement to the Land Board unless the Division finds that the applicant has met the provisions of these rules and the requirements of Statewide Planning Goal 19.

(9) An approval of an easement by the State Land Board shall be conditional and not valid until the applicant has received all other authorizations required by the Division and other applicable local, state, and federal governing bodies for the placement of the cable in the Territorial Sea.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0820

Definitions

(1) "Cable" means a conductor of electricity or light with insulation or a combination of conductors insulated from one another.

(2) "Cable Easement" is an authorization issued by the Division designating the route where a cable is to be laid on state-owned submerged and submersible land within the Territorial Sea. A cable easement does not grant any other proprietary or other rights of use to the holder.

(3) "Director" means the Director of the Division of State Lands.

(4) "Division" means the Division of State Lands.

(5) "Fiber Optic Cable" means an insulated and often armored cable used to transmit telecommunications through glass fibers using pulses of light.

(6) "Goal 19" is the Statewide Planning Goal to conserve the long-term values, benefits, and natural resources of the nearshore ocean and the Continental Shelf.

(7) "Landing" means the site on shore where a fiber optic or other cable is attached to land-based cable(s). A landing may consist of a beach manhole, receiving building, and associated equipment. If the landing is located on state-owned upland, additional authorization(s) shall be obtained from the Division or other land-owning agency (for example, Oregon State Parks) as well as other required approvals from state and local government agencies.

(8) "Ocean Policy Advisory Council" or "OPAC" has the same meaning as provided in ORS 196.438.

(9) "Ocean Users" include, but are not limited to persons using the Territorial Sea for commerce, navigation, fishing and recreation.

(10) "Person" is an individual at least eighteen (18) years old, a political subdivision or public agency, or any corporation, association, firm, partnership, joint stock company, or quasi-public corporation registered to do business in the State of Oregon.

(11) "Territorial Sea" has the same meaning as provided in ORS 196.405(6). It includes the waters and seabed extending three geographical miles seaward from the line of mean low water seaward to the extent of state jurisdiction.

(12) "Territorial Sea Management Plan" has the same meaning as provided in ORS 196.405(7). It is the plan for managing Oregon's Territorial Sea and ocean shore as required under ORS 196.405 through 196.580.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0830

Cable Easement Application Requirements

(1) Any person wanting to place a cable in the Territorial Sea shall obtain an easement from the Division, and approval by the Land Board.

(2) Unless otherwise allowed by the Director, a fully completed application for an easement shall be submitted to the Division at least one-hundred and eighty (180) days prior to placement of any part of the cable or construction of any associated landing-related facility or equipment on state-owned submerged and submersible land within the Territorial Sea. Each application for a cable easement shall be accompanied by a non-refundable application processing fee payable to the Division in the amount indicated in OAR 141-083-0830(3) of these rules.

(3) Each application for a cable easement crossing the Territorial Sea shall be accompanied by a non-refundable deposit payable to the Division in the amount of five thousand dollars ($5,000).

(4) Should the Division, in consultation with the applicant and other interested parties, determine that it is necessary to conduct environmental or other studies necessary to assist in evaluating the project's compliance with the requirements of Statewide Planning Goal 19 and the Territorial Sea Management Plan, the applicant shall be directly responsible for retaining and paying for the requisite studies.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0840

Pre-Application and Application Review Process

(1) Prior to submitting an application to the Division, the person wanting to place a cable on state-owned submerged and submersible land within the Territorial Sea shall meet with Division staff to discuss the proposed project, alternative routes, factors affecting cable installation, and desired schedule. The person is also encouraged to meet with affected ocean users and industries prior to meeting with the Division to discuss possible use conflicts and other issues attendant with the proposed cable route(s).

(2) Upon receipt of an application, the Division will determine if it is complete. Applications which are determined by the Division to be incomplete shall be returned to the applicant with an explanation of the reason(s) for rejection.

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

(4) Applications determined by the Division to be complete will be circulated to various local, state, and federal agencies and other interested persons for review and comment. The Division will circulate the application according to the requirements of its State Agency Coordination Program.

(5) To obtain public comment and identify possible issues concerning the proposed cable, the Division may hold public information meetings in the vicinity of each cable landing prior to, or after receipt of an application. The person proposing the cable or easement applicant shall attend any public meetings scheduled by the Division and be prepared to discuss the project.

(6) An easement applicant may amend their application at any time in order to address issues, concerns, or information shortfalls identified by the Division or other commentors.

(7) After receipt of agency and public comment concerning the proposed project resulting from the State Agency Coordination application circulation, the Division shall determine whether additional information is needed and/or modifications required to the proposed project. The easement applicant shall then be notified in writing of the Division's requirements.

(8) An easement applicant shall be given the opportunity to revise their proposed project or demonstrate why suggested changes are not feasible prior to the Division's development of its recommendation to the State Land Board regarding the subject easement and related requirements for the location, construction, operation and maintenance of the cable.

(9) The Land Board may approve or deny the easement based on the recommendation of the Division and the findings required by OAR 141-083-0810(8).

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0850

Cable Easement Terms and Conditions

(1) All cable easements issued under these rules shall require approval by the State Land Board.

(2) Easement applicants may be required to obtain a surety bond to ensure that they will perform in accordance with all terms and conditions of the easement. The surety bond amount shall be determined by the Division. A cash deposit or certificate of deposit in an amount equal to the amount required for a surety bond and which names the State of Oregon as co-owner may be substituted in lieu of a bond.

(3) A cable easement issued by the Division shall be valid for an initial term of twenty (20) years, and may be renewed at the holder's option for an additional twenty (20) year term upon application to the Division.

(4) All cables are to be buried using the best available proven technology whenever Territorial Sea bottom conditions permit to a sufficient depth to minimize conflicts with other ocean users and industries and recognizing the potential need to retrieve the cable for repair or removal.

(5) The Division shall be notified in writing by the easement holder at least ninety (90) days:

(a) Prior to any pre-planned change in the location of the cable.

(b) Prior to any change in ownership of the cable.

(c) After the discovery of any change in the location of the cable resulting from accidental contact or geologic or other natural causes.

(d) Prior to any abandonment or termination of use of the cable.

(6) If determined necessary by the Division in consultation with the easement holder and other interested parties, and if permitted by the applicable federal agency(ies) regulating the cable, the easement holder shall remove the cable from the state-owned submerged and submersible land within one (1) year following the termination of use of the cable or expiration of the easement.

(7) Easements issued pursuant to these rules may be subject to a term based payment or annual rental payments subsequently established by the Land Board pursuant to governing law for use of state-owned submerged and submersible land.

(8) Easement holders shall inspect cables to ensure that they remain both within the area authorized by the easement and buried. These inspections are to be done on a frequency to be determined by the Division in consultation with the easement holder and other interested parties.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0860

Penalties

In addition to any other penalties provided or permitted by law, the placement of any cable or related structure on state-owned land without an easement or otherwise not in compliance with these rules shall constitute a trespass, and be prosecuted pursuant to governing law.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

141-083-0870

Reconsideration of Decision

(1) An easement applicant or any other person adversely affected by the issuance or denial of a fiber optic cable or other cable easement on state-owned submerged and submersible land within the Territorial Sea may request that the Land Board reconsider the decision.

(a) Such a request shall be received by the Director no later than thirty (30) calendar days after the delivery of the decision.

(b) The Director shall review the request within sixty (60) calendar days after the date of delivery of the request.

(c) The Director may recommend to the Land Board either that the easement issuance or denial be modified based on the merits of the request, or that the Land Board authorize initiation of a contested case proceeding.

(2) If the Director recommends that the Land Board initiate a contested case proceeding, the Land Board shall select a hearing officer ad proceed pursuant to ORS 183.413 through 183.470.

Stat. Auth.: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Stats. Implemented: ORS 196.800 - ORS 196.990 & ORS 390.805 - ORS 390.925
Hist.: DSL 21-1999, f. & cert. ef. 11-1-99

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