Natural Resources, Parks and Recreation

Rule R651-700

Administrative Procedures for Real Property Management

Notice of Proposed Rule

(New Rule)

DAR File No.: 32898
Filed: 08/25/2009 04:05:22 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes administrative procedures for real property under the management and/or ownership of the State of Utah, Division of Parks and Recreation (State Parks) real property, as set forth in Title 79, Chapter 4. This rule establishes standards and procedures for acquisition, disposal, and exchange of Division Lands consistent with laws of the State of Utah. The rule provides procedures for granting of rights-of-way, easements and special use permits, and other nonrecreational use of Division Lands. This rule ensures consistency and efficiency of land management in order to maximize benefits to the Division and provide accountability to the citizens of Utah. The rule also establishes protection of real property assets, which are fixed assets of the State of Utah, in compliance with applicable laws, rules, and policies.

Summary of the rule or change:

Due to the increasing frequency of private and public requests for access to real property owned and operated by Utah State Parks, the Division with assistance from our Deputy Attorney General has drafted the real property rule. This rule will provide Utah State Parks with legally defensible procedures and policies for the decisions made with respect to real property transactions such as water rights, acquisition, exchange, sale, leases, easements, and permits. Utah State Parks currently lacks any rules for real property transactions.

State statutory or constitutional authorization for this rule:

• Title 79, Chapter 4

Anticipated cost or savings to:

the state budget:

There are application fees associated with special use permits, easements, special use leases, and rights-of-way (ROW). Those fees are outlined in our current fee schedule and are determined by the Parks Board and approved through the legislature. The creation of this rule does not change any fees. Therefore, there are no new fees associated with the creation of this rule.

local governments:

There are application fees associated with special use permits, easements, special use leases, and ROW. Those fees are outlined in our current fee schedule and are determined by the Parks Board and approved through the legislature. The creation of this rule does not change any fees. Therefore, there are no new fees associated with the creation of this rule.

small businesses:

There are fees associated with special use permits, etc, but this rule does not change those costs, requirements or fees. They will stay as they are now.

persons other than small businesses, businesses, or local governmental entities:

There are application fees associated with special use permits, easements, special use leases, and ROWs. Those fees are outlined in our current fee schedule and are determined by our Parks Board and approved through the legislature. The creation of this rule does not change any fees. Therefore, there are no new fees or requirements associated with the creation of this rule.

Compliance costs for affected persons:

There are fees associated with special use permits, etc, but this rule does not change those costs, requirements or fees. The fees will stay the same as they currently are.

Comments by the department head on the fiscal impact the rule may have on businesses:

There should be minimal impact on business.

Michael R. Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Parks and Recreation
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Tammy Wright at the above address, by phone at 801-538-7359, by FAX at 801-538-7378, or by Internet E-mail at tammywright@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2009

This rule may become effective on:

10/22/2009

Authorized by:

Mark Forbes, Deputy Director (Legislation)

R651. Natural Resources, Parks and Recreation.

R651-700. Administrative Procedures for Real Property Management.

R651-700-1. Authority.

These rules establish administrative procedures for real property under the management and/or ownership of the State of Utah, Division of Parks and Recreation ("State Parks") real property, as set forth in Utah Code Ann. Title 79, Chapter 4. State Parks, through the Parks Board, may establish rules for the acquisition, planning, protection, operation, maintenance, development, and wide use of scenic beauty, recreation utility, historic, archeological, or scientific interest, to the end that the health, happiness, recreational opportunities, and wholesome enjoyment of life may be preserved.

R651-700-2. Purpose.

These rules are intended:

(1) To establish standards and procedures for acquisition, disposal, and exchange of Division lands consistent with law of the State of Utah.

(2) To provide procedure for granting of rights-of-way, easements and special use permits, and other non-recreational use of Division lands.

(3) To ensure consistency and efficiency of land management in order to maximize benefits to the Division and provide accountability to the citizens of Utah.

(4) To protect real property assets, which are fixed assets of the State of Utah, in compliance with applicable laws, rules and policies.

R651-700-3. Application.

These rules are applicable statewide for real property transactions but they shall be liberally construed to permit the Division to effectuate the purposes of Utah law.

R651-700-4. Definitions As Used in This Section.

(1) "Applicant" means any person applying for a Right-Of-Way (ROW), Easement, Lease, Special Use Lease, and Special Use Permit.

(2) "Agriculture" means the cultivation of land to grow crops or the raising of livestock.

(3) "Appraised Value" means an estimate of the current fair market value of property derived by disinterested persons of suitable qualifications, for example, a licensed independent appraiser.

(4) "Authorized Area" is the area of Division-owned land, which the Division allows a development to occupy, or person to use through a ROW, Easement, Lease , Special Use Lease, and Special Use Permit.

(5) "Board of Parks & Recreation" is the policy making body of the Division of State Parks and Recreation.

(6) "Communications Facility" means towers, antennas, dishes, buildings, and associated equipment used to transmit or receive radio, microwave, wireless communications, and other electronic signals. The roads, pipes, conduits, and fiber optic, electrical, and other cables that cross over of under State Parks to serve a communications facility shall be governed by the administrative rules for granting Easements as set forth in R651-700.

(7) "Department" means the Department of Natural Resources.

(8) "Development" means any structure built on State Parks land.

(9) "Director" is the agency head of the Division in whom ultimate legal authority is vested or their designee.

(10) "Division" is the Division of Parks and Recreation, also referred to as "State Parks", Division and State Parks may be used interchangeably, as appropriate.

(11) "Division Land" is land owned and/or managed by the Division or its agents.

(12) "Easement" means an interest in land owned by another party, entitling the holder of said interest to limited use of enjoyment of the others land.

(13) "Executive Director" means the executive Director of the Utah Department of Natural Resources.

(14) "Fair Market Rental Value" is the annual amount in cash a willing tenant would pay, and a willing landlord would charge for the same or similar lands for the highest and best use of the property.

(15) "Lands and Environmental Coordinator" is the Division employee responsible for real property planning, documentation, analysis, reports, agreements, databases, and coordination.

(16) "Lease" means an agreement that authorizes use of real property for a specific term and purpose, under specified conditions for a fee.

(17) "Paleontological Resources" means the remains or traces of organisms, plant or animal, which have been preserved by various means.

(18) "Park Manger" is the management official for one or more state parks.

(19) "Rights-of-Way (ROW) means the right or privilege, acquired through contract or other legally accepted means, to pass over a designated portion of the property of another.

(20) "Real Property" is land under water, upland, and all other property commonly or legally defined as real property (as set forth in Utah Code Ann. Section 79-4-203).

(21) "Real Property Asset" means the land surface, air above, and ground below, including all appurtenances to the land including buildings, structures, fixtures, fences and improvements erected on or attached to the same. Real property assets include any and all the interests, benefits, and rights inherent in the ownership of real estate.

(22) "Region" means a geographical grouping of state parks for management purposes. There are four state park regions: northwest, northeast, southwest, and southeast. Park Managers report to their respective region manager.

(23) "Region Manager" is a manager of a geographic assemblage of state parks. There are four state park regions: northwest, northeast, southwest, and southeast. Park Managers report to their respective region manager.

(24) "Resource Management Plan" is a plan prepared for the current and future management of a state park or recreational resource such as trails, boating safety, or off-highway vehicles.

(25) "Special Use Lease" is a written authorization issued by the Division to a person to use a specific area of Division Land for a special use under specific terms and conditions for a term of one (1) to fifteen (15) years.

(26) "State Park" means unique areas or real property in Utah set aside by the Utah State Government to preserve scenic beauty, recreational utility, historic, archeological, or scientific interest, to the end that the healthy, happiness, recreational opportunities, and wholesome enjoyment of life may be preserved.

(27) "Special Use Permit" means a temporary authorization for a specific, non-depleting land use including but not limited to seismic or land surveys, research sites, or time-certain physical access o Division Lands. This contract vehicle is of a lesser order than a lease or Easement, is generally associated with a temporary event of short duration, and does not convey any proprietary or other rights or the use to the holder other than those specifically granted in the permit authorization.

(28) "Structure" means anything placed, constructed, or erected on Division Land.

R651-700-5. Obtaining an Opinion of Value.

(1) When acquiring, exchanging, or selling Division Lands the Division may determine the value of real property utilizing any or all of the following methods:

(a) Broker's Estimate:

(b) Market Analysis, including but not limited to an appraisal, broker's estimate, market conditions analysis, and market demand analysis; and

(c) Appraisal.

(2) An Appraisal, Broker's Estimate, or Market Analysis may not be required if:

(a) Transactions involve water rights;

(b) Transactions involve federal lands or federal funding, where federal guidelines take precedence over the provisions of this rule;

(c) The market value of the subject property interest is less than One-Hundred Thousand Dollars ($100,000), as estimated by the Division;

(d) The asking price for the property interest is considerably below prevailing market conditions, as estimated by the Division;

(e) The asking price for the property interest is reasonable based upon prevailing market conditions, but the Division will lose the opportunity to purchase the property if time is taken to conduct an appraisal or acquire a real estate broker's estimate of value prior to making an offer;

(f) An appraisal has been conducted on the subject property interest within the past twelve months;

(g) The subject property interest is being conveyed through an auction;

(h) The real property interest is a gift, contribution, or donation to the Division; or

(i) The real property interest is less-than-fee interest or not perpetual; or

(j) When the Director has determined by a written finding, that the cost of obtaining the appraisal is not justified, or in the best interest of the State of Utah.

(3) When values other than market value are considered in addition to or in place of an appraisal; or are considered in addition to, or in place of, an opinion of value rendered by a broker or sales agent; the Division shall create and keep a memo-to-file describing the Division's rationale in said consideration relative to the proposed price and other terms of the purchase, sale, or exchange.

R651-700-6. Land Acquisition.

(1) The Division may acquire real property through any and all legal means in order to fulfill its mission and legislative mandate.

(2) Acquisition of real property may be made by all legal and proper ;means, including purchase, gift, devise, eminent domain, lease, exchange, or otherwise, subject to the approval of the Director, Executive Director and the Governor of the State of Utah.

(3) Only the Division Director or Deputy Director, if designated, is authorized to sign closing papers, real property contracts, and/or deeds.

(4) Eminent domain acquisition shall be in the manner authorized by Utah Code Ann. Title 78, Chapter 34 et seq.

(5) The Division shall prepare an analysis of the proposed acquisition that provides the Director with the benefits of the acquisition to the Division, including an opinion as to whether or not the Division is the appropriate manager of the resource to be acquired.

(6) The due diligence according to CERCLA procedures shall be performed in order for the property to be warranted free from hazardous materials or geological hazards.

(7) The Division shall make every effort to acquire subsurface mineral, water and any other rights attached to the land.

(8) Pursuant to Utah Code Ann. Subsection 79-4-203.5(a), before acquiring any real property, the Division shall notify the county legislative body of the county where the property is situated of its intention to acquire the property. If the county legislative body requests a hearing within ten days of the receipt of the notice, the board shall hold a public hearing in the county concerning the matter.

(9) Pursuant to Utah Code Ann Section 23-21-1.5, the Division shall notify the Resource Development and Coordinating Committee (RDCC) for its review and approval by the Governor.

(10) Proposed purchases of real property, or donations of such, shall be inspected on-site by a team consisting of the local park manager, region manager, Lands and Environmental Coordinator and others as designated by the Director.

(11) When acquiring lands the Division may determine the value of real property according to the policies contained in R651-799-5.

(12) A title report and/or land survey may be performed on all land acquisitions, at the discretion of the Director.

(13) After receiving the preliminary title report the Lands and Environmental Coordinator may request a review by the Attorney General's office.

(14) The closing of a real property transaction may be conducted at a title company. If a title company is used for closing, the Division shall instruct the company to record the deed, and after recording, send it to the Lands and Environmental Coordinator.

R651-700-7. Disposal of Real Property.

(1) The Division may dispose of real property in order to fulfill its mission and legislative mandate.

(2) Unless otherwise directed by the legislature, all land disposals shall be brought before the Parks Board for consultation, and shall have the final approval of the Director.

(3) Only the Division Director or Deputy Director, if designated, is authorized to sign closing papers, real property contracts, and/or deeds.

(4) The State Historic Preservation Officer shall be provided a reasonable opportunity to review and comment on the proposed sell as required by Utah Code Section 9-8-404.

(5) The Division shall make every effort to retain subsurface mineral, water and any other rights attached to the land. If any of these rights are transferred with the property, the Division shall receive full compensation for the rights conveyed.

(6) When selling real property the Division may determine a minimum selling price according to the policies contained in R651-700-5.

(7) Prior to completion of sale, lessees and permitees shall be notified an leases and permits cancelled or amended in accordance with the terms of the lease or permit may be cancelled or amended.

(8) The Division may sell real property to the public, upon approval of the Parks Board, through a competitive bid process to achieve the Division's goals.

(a) The Division may announce the sale of real property to the public by commercially feasible methods, to include publication in one or more newspapers of general circulation in the county in which the sale is proposed, at least 30 days or more in advance of the deadline for bid submittals.

(b) Notification and advertising shall include a general description of the parcel including township, range, and section, and any other information, which may create interest in the sell. The Division shall also identify the desired form of compensation, whether monetary, in-kind or both.

(c) Sealed bids shall be accepted no sooner than 14 days following the first sale notice. Competing bids shall be evaluated and the highest bid selected unless the highest bid does not meet the minimum value. In the case of a tie bid, the highest bidders shall be offered the opportunity to participate in an oral bidding process.

(d) Once a successful bidder has been determined, a certificate of sale shall be prepared by the Lands and Environmental Coordinator and reviewed by the Assistant Attorney General assigned to represent the Division. A title company may provide the final closing arrangements, at the cost of the purchaser.

(e) The successful bidder shall pay the remaining balance at the time of closing and shall be responsible for all closing costs.

(f) When there are no successful bidders on the property, the unsold parcels may be:

(i) Listed with a realtor

(ii) Offer the property on a "first-come first-served" basis for a period of up to three years following the bid opening date; or

(iii) Auction the property.

R651-700-8. Land Exchanges.

(1) The Division may exchange real property in order to fulfill its mission and legislative mandate.

(2) Pursuant to Utah Code Ann. Subsection 79-4-203.5(a), before acquiring any real property through exchange, the Division shall notify the county legislative body of the county where the property is situated of its intention to acquire the property. If the county legislative body requests a hearing within ten days of the receipt of the notice, the board shall hold a public hearing in the county concerning the matter.

(3) Only the Division Director or Deputy Director, if designated, is authorized to sign closing papers, real property contracts, and/or deeds.

(4) Pursuant to Utah Code Ann. Section 23-21-1.5, the Division shall notify the Resource Development and Coordinating Committee (RDCC) for its review and approval by the Governor.

(5) The State Historic Preservation Officer shall be provided a reasonable opportunity to review and comment on the proposed exchange as required by Utah Code Section 9-8-404.

(6) Prior to completion of exchanges, lessees and permitees shall be notified and leases and permits cancelled or amended in accordance with the terms of the lease or permit may be cancelled or amended.

(7) When exchanging lands the Division may determine the value of real property according to the policies contained in R651-700-5.

(8) The criteria for exchange proposals are evaluated as follows:

(a) Real property owned by the Division may be exchanged for private and/or public properties of equal or greater recreation or monetary value in both acreage and monetary worth if the exchange shall benefit the Division's park system. The Division may exchange real property for other assets if the exchange benefits the park system.

(b) Verification shall be made that the exchange shall not result in an unmanageable and/or uneconomical parcel of Division Land, nor eliminate access to a remnant holding, without appropriate remuneration or compensation.

(c) Proposed exchanges of real property shall be inspected on-site by a team consisting of the local Park Manager, Region Manager, Lands and Environmental Coordinator and others as designated by the Director.

(d) The due diligence according to CERCLA procedures shall be performed in order for the property to be warranted free from hazardous materials or geological hazards.

(e) The Division shall make every effort to retain subsurface mineral, water and any other rights attached to the land. If any of these rights are transferred with the property, the Division shall receive full compensation for the rights conveyed.

(f) The Division, at is discretion, may at any time cancel any and all negotiations for a land exchange.

(9) If the Division is offered a land exchange, an application shall be filed with the Division, and evaluated by the Division with the follow additional criteria:

(a) A completed application form shall be submitted with an application-processing fee established by the Division.

(b) Incomplete applications may be denied and the application fee forfeited to the Division.

The Applicant shall provide a property description, preferably a metes and bounds survey, a county plat map of all properties to be considered for the exchange. A map shall be provided indicating the relationship of the properties to Division Land.

(d) The due diligence according to CERCLA procedures shall be performed in order for the property to be warranted free from hazardous materials or geological hazards.

(e) Other essential information required by the Lands and Environmental Coordinator and/or the Division.

(f) Upon receipt of an exchange application, the Division may solicit competing exchange property or assets. Competing applications may be solicited through publication, at least once a week for three consecutive weeks, in one or more newspapers of general circulation in the county in which the park is located. The Division may allow all applicants at least 20 days from the date of mailing of notice to submit a sealed bid containing their proposal for the subject parcel.

(g) The Director may approve or disapprove any exchanges based on information solicited through the application process. The Director may also waive the application for good cause.

(h) If competing proposals are received, the Division shall choose the successful applicant by evaluating each proposal for its contribution toward attainment of Division management objectives.

(i) The successful applicant may be charged an amount equal to all appraisal, appraisal reviews, advertisement, staff time, and other costs to the Division. The Director, for good cause shown by the applicant, may waive such costs.

R651-700-9. Right-Of-Way (ROW), Easements, Special Use Leases, and/or Special Use Permit.

(1) The Division may enter into real property transactions in order to fulfill its mission and legislative mandate.

(2) Only the Division Director or Deputy Director, if designated, is authorized to sign closing papers, real property contracts, and/or deeds.

(3) Potential applicants for ROW, Easements, Special Use Lease, Special Use Permit may contact the park manager or regional manager prior to making a formal application to the Lands and Environmental Coordinator.

(4) To apply for a ROW, Easement, Special Use Lease a person shall:

(a) Complete and submit an application provided by the Division to the Lands and Environmental Coordinator, unless it is an application for a Special Use Permit, in which case it shall be submitted to the appropriate park manager;

(b) Pay a non-refundable application fee;

(c) If for the purpose of construction or occupancy, submit the application and application fee at least 120 days prior to the proposed construction or occupancy date, unless otherwise specified by rule;

(d) Provide a map, aerial photograph, or other guide to the project area. Map scale may be larger but must identify township and range sections, UTM coordinates, and give appropriate scale.

(e) Anyone desiring to perform a survey on Division Land with the intent of filing an application for an ROW, Easement or Special Use Lease shall prior to entry for surveying activities, file with the agency an application for a Special Use Permit. The permit shall include a description of the proposed survey project, including the purpose, general location, and potential resource disturbances of the proposed survey. The appropriate park manager or his delegate shall review the application.

(f) Provide evidence of an ownership or leasehold interest in the estate where development of that estate is the purpose for applicants seeking a ROW or Easement.

(g) Include a project plan with the following information:

(i) Project alternatives, including alternatives not affecting the Division;

(ii) Project alternatives not affecting Division Land which were considered but rejected, and the specific reasons those alternatives were rejected;

(iii) A description of the proposed activity, structures, and/or infrastructure, including site location, construction footprint, above and below ground construction, infrastructure's functional relationship to existing or future infrastructure, etc. the description shall be sufficiently detailed as to provide an accurate and complete representation of the proposed actions;

(iv) Identification of adverse impacts to public recreation and scenic values associated with the proposed use and how they shall be avoided, minimized, or mitigated;

(v) Other essential information required by the Lands and Environmental Coordinator and/or the Division.

(5) Upon receiving the application, application fee, and the information required in Subsection (4) above, the Lands and Environmental Coordinator may either deny the application or grant a conditional approval within 60 days.

(6) If the application is denied, the Lands and Environmental Coordinator shall provide a written notice to the applicant.

(7) Before final approval is granted the Division may require the applicant to provide the following additional information:

(a) A certified copy of a survey of the area affected by the proposed project prepared by a licensed surveyor. A centerline survey describing the proposed ROW and its width is adequate for a pipeline, road, power line, or similar use.

(b) An electronic file depicting the Easement, ROW or Special Use Lease Area that is compatible with, and requires no editing fork accurate downloading into geographic systems information software used by the Division.

(c) Evidence that the applicant had given the State Historic Preservation Officer a reasonable opportunity to review and comment on the proposed project as required by Utah Code Section 9-8-404.

(d) An impact assessment analyzing the potential direct, indirect, and cumulative effects the proposed project may have on public recreation opportunities, scenic values, wildlife, and wildlife habitat.

(e) A survey of threatened, endangered and candidate plant and animal species. Utah wildlife sensitive species, and Utah species of special concern conducted on and adjacent to the proposed project.

(f) Proof that the applicant has secured all the permits and authorizations required for the project under State, Federal and local laws.

(g) Proof that the applicant has complied with the provisions of the National Environmental Policy Act, where applicable, including preparation of all environmental assessments, environmental impact statements, or other reports required by the administering federal agency.

(h) A survey of the project to determine if wetlands shall be impacted. The project applicant is responsible for obtaining all federal Clean Water Act Section 404 permits. If wetlands are found, the applicant must provide sufficient mitigation to offset any damage to the wetland area.

R651-700-10. Division Assessment of the Applications for ROWs, Easements, and Special Use Leases.

(1) Upon receipt of an application for a ROW, Easement or Special Use Lease, the Division shall determine;

(a) If the application is complete;

(b) If the subject area is available for the requested use; and

(c) The method to be used to determine the amount of compensation payable to the Division.

(2) The Division shall then advise the applicant of its determination concerning each of the three factors in Section (1). Applications determined by the Division to be incomplete, or for an area in which the use would be incompatible shall be returned to the applicant with a written explanation of the reason(s) for rejection.

(3) If an application rejected for incompleteness is resubmitted within ninety (90) calendar days for the date the Division returned it to the applicant (as determined by the date of postmark), no additional application fee will be assessed.

(4) The Division may reject applications for ROWs or Easements that would be more appropriately authorized by a Special Use Lease.

(5) Upon acceptance by the Division, the application may be circulated to various local, state, and federal agencies and other interested persons including tribal governments, adjacent property holders, affected lessees and permitees, and Easement holders for review and comment. As part of this review, the Division shall specifically request comments concerning:

(a) The presence of state or federal listed threatened and endangered species (including candidate species) And archaeological and historic resources within the requested area that may be disturbed by the proposed use;

(b) Conformance of the proposed use with other local, state, and federal laws and rules;

(c) Conformance of the proposed use with a state park comprehensive land use plan, resource management plan, operation plan, business plan, and/or zoning ordinances;

(d) Conformance with existing state park rules, policies, and guidelines;

(e) Potential conflicts of the proposed use with existing leases, permits or Easement holders.

(6) If the application is for a communications facility, the Division may request comments from the Federal Communications Commission, Public Utility Commission, and any other person's owning/leasing communications facilities that advise the Division that they w3an to receive such applications.

(7) After receipt of agency and public comment concerning the proposed use, the Division shall advise the applicant in writing:

(a) If changes in the use or the requested lease or permit area are necessary to respond to agency or public comment;

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

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

(ii) Archeological and historic resources within the requested area; and/or

(iii) Wetlands.

(c) In the case of a Special Use Lease, if the area requested for lease will be authorized for use by the applicant through a Special Use Lease, or be made available to the public through competitive bidding pursuant to R651-700-12.

R651-700-11. Compensation for ROW, Easements, Leases and Special Use Leases.

(1) In establishing the amount of annual compensation, or minimum bid at auction, the Division shall:

(a) Adhere to the policies contained in R651-700-5 of these rules;

(b) Whenever practicable, base the amount of annual compensation on the fair market rental value received by property owners for similar property used in a similar manner;

(c) Require the holder of a Special Use Lease for a communications facility to annually remit to the Division both;

(I) The full amount of the base annual compensation required by their lease, and

(ii) A payment, the amount to be determined by the Division on a case-by-case basis, of the rental received by the lessee during the previous calendar year from the sublessees using the subject facility authorized by the lease.

(d) In the event that reliable data concerning fair market rental value are not available, the Division shall select another method of determining the amount of annual compensation, or minimum bid at auction such as a percent of the appraised value of the requested area, percent of crop value, or percent of product produced.

(e) Rents for ROW, Easements, and leases are based on the costs incurred by the Division and fair market value. Fees are based on the current fee schedule that can be obtained from the Lands and Environmental Coordinator.

R651-700-12. Competitive Bidding Process for Special Use Leases.

(1) The Division shall determine on a case-by-case basis if an area requested for a Special Use Lease shall be offered to the public through competitive bidding. This decision shall be made after considering:

(a) Whether the area requested for a Special Use Lease or permit is Division Land;

(b) The nature of the use and length of authorization requested;

(c) The availability of reliable data regarding the fair market rental value of the subject parcel for the proposed use; and

(d) Whether other applications are received by the Division to use the same area requested for the same or competing uses.

(2) If the Division determines that the greatest benefit to the public recreation and/or the Division would be achieved by offering the subject area through competitive bidding, it shall give Notice of Leasehold Availability and provide an opportunity for applications to be submitted.

(3) The Notice of Leasehold Availability shall state;

(a) The location and size of the subject area;

(b) The user(s) approved by the Division for the subject area;

(c) The type of auction and minimum acceptable bid amount;

(d) What developments, if annex on the subject area the applicant must purchase from the existing lessee, and a general estimate of the present value of said developments as determined by the Division; and

(e) The deadline for submitting a completed application to the Division.

(4) The Notice of Leasehold Availability shall be:

(a) Published at the applicant's expense not less than once each week for two (2) successive weeks in a newspaper of general circulation in the county(ies) in which the subject parcel is located;

(b) Posted on the Division Internet website; and

(c) Sent to persons indicating an interest in the subject parcel.

(5) The highest qualified bidder shall be awarded the lease at auction subject to satisfaction of the requirements of R651-700- (9 and 10) of these rules. The Division, however, shall have th right to reject any and all bids submitted.

R651-700-13. Right-Of-Way (ROW), Easements, Special Use Leases - Final Determination.

(1) The Director may deny any application if:

(a) The application does not include all the information required;

(b) The potential impact to public recreation, cultural/historic resources, view shed, wildlife habitat, or water quality is unacceptable;

(c) The proposed project contravenes the Recreation Management Plan or site master plan;

(d) The applicant has not, in the opinion of the Division, adequately considered ways to avoid or minimize impacts or proposed adequate compensatory mitigation plans for unavoidable impacts, including cumulative impacts;

(e) There are, in the opinion of the Division, alternative locations reasonably available on lands not owned by the Division for the requested use including organized events that may harm public recreation, wildlife, wildlife habitat, utilities, telecommunications structures, transmission lines, canals, ditches, pipelines, tunnels, fences, roads, and trails;

(f) The application's project affects property in which a third party has contractual or legal oversight rights and the project is rejected by that party; or

(g) The applicant is in default on any previous obligation to the Division.

(2) If the application is rejected, the Division shall provide a written notice to the applicant.

(3) A ROW, Easement or Special Use Lease may include provisions requiring the applicant to:

(a) Restore all structures, including but not limited to fences, roads, and existing facilities, and regard as nearly as practical to the pre-project grade and contour, and re-vegetate the impacted area to Division specifications;

(b) Adhere to the terms of the applicant's approved project plan prescribed in subsection R651-700-9(4)(f);

(c) Pay for surveys, environmental assessments, environmental impact statements, appraisals, restoration, re-vegetation, compensatory mitigation and all other expenses associated with the project; and

(d) Provide all permits and clearances for the project.

(4) Prior to the issuance of an Easement, ROW, Special Use Permit or Special Use Lease or for good cause shown at any time during the term of the agreement, upon 30 days written notice, the applicant or grantee, as the case may be, may be required to post with the agency a bond in the form and amount as may be determined by the agency to assure compliance with all terms and conditions of the Easement, ROW, Special Use Permit or Special Use Lease.

(5) Easements, R"OW, Special Use Permits and Special Use Leases issued by the Division shall be on a form supplied by the Division that has been approved for legal sufficiency.

(6) If the Division decides to issue a ROW, Easement, or Special Use Lease to the applicant without competitive bidding, the written notice will also indicate;

(a) The amount of compensation that the applicant shall remit to the Division to obtain authorization;

(b) Any insurance and/or surety bond required by the Division pursuant to the requirements of R651-700-16; and

(c) A draft copy of the ROW, Easement, or Special Use Lease.

(7) The Division shall not grant an Easement, ROW, Special Use Permit or Special Use Lease to the applicant until it has received all fees and compensation specified in these rules, and evidence of any required insurance and/or surety bond.

(8) The Director may refer any applications for a Special Use Lease to the Parks Board for review and approval.

R651-700-15. Easement, ROW, Special Use Permit or Special Use Lease - General Terms and Conditions.

(1) A ROW or Easement may be granted for a maximum of thirty (30) years from the date of the signing. The Division may grant such real property interests for shorter time periods. The Director may provide an exception, in whole or in part, to the rules for use of Division land and other recreational areas for an Easement, R"OW, Special Use Permit, or Special Use Lease granted pursuant to this section. The exception may be provided by a written decision issued by the Director and shall be effective for the term or such lesser period of time specified by the Director.

(2) The term of a Special Use Lease shall not exceed fifteen (15) years. The Division shall determine the length of a special use lease based on the nature of the use intended for the requested site. The Division may, at its discretion, provide as a provision of the lease that it may be renewed for a term to be determined by the Division.

(3) The term of a Special Use Permit shall not exceed one (1) year. A Special Use Permit may, at the discretion of the Division, be renewed up to two (2) times for a maximum term of ninety (90) days each time.

(4) Special Use Leases and Special Use Permits shall be offered by the Division for the minimum amount of area determined by the Division to be required for the requested use.

(5) The lessee or permittee may request the Division to close all or potions of the authorized area to public entry or restrict recreational use by the public to protect the persons, property, and/or crops from harm.

(6) The Division or its authorized representative(s) shall have3 the right to enter into and upon the authorized area at any time for the purposes of inspection or management, or to conduct noxious weed or pest abatement, or for wildfire control.

(7) The lessee, grantee or permittee shall dispose of all waste in a proper manner and shall not permit debris, garbage or other refuse to either accumulate within the authorized area or be discharged into any waterway.

(8) A lessee, grantee or permittee may not interfere with lawful public use of an authorized area, or obstruct free transit across Division Land , or intimidate or otherwise threaten or harm public users of Division Land.

(9) Upon the expiration or termination of a ROW, Easement, Special Use Lease or Permit, the holder shall remove any or all developments as directed by the Division within sixty (60) calendar days of the date of termination of the Easement, ROW, lease or permit. Any developments remaining on the area authorized by the Easement, Row, lease or permit after the sixty (60) day period shall become the property of the Division. If the grantee, lessee or permittee refuse to remove the subject developments, the Division may remove them and charge the grantee, lessee or permittee for doing so.

(10) The holder of a Special Use Lease or permit shall not allow any other use to be made of, or occur on the site or vicinity that is not specifically authorized:

(a) By that lease or permit; or

(b) By the Division in writing prior to the use.

R651-700-16. Insurance and Bond - Easement, ROW, Special Use Lease, Special Use Permit.

(1) The Division may require a grantee, lessee or permittee to obtain insurance in a specified amount if the use, in the opinion of the Division, constitutes a risk to public safety, or to the State of Utah.

(2) The Division may request that the applicant, grantee, lessee or permittee provide information concerning the use of the area to the Risk Management, which may assist the Division in determining the appropriate amount of insurance coverage based on the nature of the use.

(3) All bonds posted on Easements, leases, ROW, or permits may be used for payment of all monies, rentals, and royalties due to the grantor, also for costs of reclamation and for compliance with all other terms and conditions of the Easement, and rules pertaining to the Easement. The bond shall be in effect even if the grantee has conveyed all or part of the Easement interest to a sub lessee, assignee, or subsequent operator until the grantee fully satisfies the Easement obligations, or until the bond is replaced with a new bond posted by the sublessee or assignee.

(4) Bonds may be increased in reasonable amounts, at any time as the Division may decide, provided grantor first gives grantee 30 days written notice stating the increase and the reasons(s) for the increase.

(5) Bonds may be accepted in any of the following forms at the discretion of the Division:

(a) Surety bond with an approved corporate surety registered in Utah;

(b) Cash deposit. However, the Division shall not be responsible for any investment returns on cash deposits;

(c) Certificate of deposit in the name of "The Division of State Parks and Recreation and applicant, c/o Applicant's address", with an approved state or federally insured banking institution registered in Utah. The certificate of deposit must have a maturity date no greater than 12 months, be automatically renewable, and be deposited with the agency, the grantee shall be entitled to and receive the interest payments. All certificates of deposit must be endorsed by the applicant prior to acceptance by the Director; or

(d) Other forms of surety as may be acceptable to the Division.

R651-700-17. Assignment of ROW, Easement, Special Use Leases and Special Use Permits, Subleasing.

(1) A ROW, Easement or Special Use Lease in good standing is freely assignable.

(2) Special Use Permits are non-assignable.

(3) To assign a ROW, Easement or Special Use Lease, the lessee shall submit a:

(a) Notice of proposed assignment on a form provided by the Division; and

(b) Non-refundable assignment processing fee payable to the Division.

(4) The Division shall make every effort to complete its review of such proposed assignments within thirty (30) calendar days of receipt of the notice. The Division may request additional information concerning the proposed assignment.

(5) A sublease or assignment may be made only to a person, firm, association, or corporation qualified to do business in the State of Utah, and which is not in default under the laws of the State of Utah relative to qualification to do business within the state, and is not in default on any previous obligation to the Division.

(6) A lessee wanting to offer a sublease to another person shall:

(a) Obtain prior written authorization from the Division by applying to the Division on a form provided by the Division, and

(b) Submit to the Division rent, in an amount to be determined by the Division on a case-by-case basis, at the end of the calendar year.

(7) A sublease or assignment shall take effect the date of the approval of the assignment. On the effective date of any assignment, the assignee is bound by the terms of the lease to the same extent as if the assignee were the original grantee/lessee, any conditions in the assignment to the contrary not withstanding.

(8) A sublease or assignment must be a sufficient legal instrument, properly executed and acknowledged, and should be clearly set forth the lease or contract number, land involved, and the name and address of the assignee and shall include any agreement which transfers control of the lease to a third party. A copy of the documents subleasing or assigning the interest shall be given to the Division.

(9) A sublease or assignment shall be executed according to Division procedures.

(10) A sublease or assignment is not effective until approved by the Division.

R651-700-18. ROW, Easement, Special Use Leases and Special Use Permits - Unauthorized Uses and Penalties.

(1) Uses and developments subject to, but not authorized by a ROW, Easement, Special Use Lease or Special Use Permit issued by the Division constitute a trespass and must be removed as directed unless otherwise authorized in writing by the Division.

(2) In addition to any other penalties provided or permitted by law3, the placement of ay development on, or use of Division Land without the required Division authorization as described in these rules, or which is otherwise not in compliance with these rules shall constitute a trespass and be prosecuted pursuant to governing law.

R651-700-19. Termination of a Special Use Lease or Special Use Permit for Default.

(1) If the lessee or permittee fails to comply with these rules or other lease terms and conditions, or otherwise violates laws covering the use of his/her authorized area, the Division shall notify the lessee or permitees in writing of the default and demand correction within a specified time frame.

(2) If the lessee or permittee fails to correct the default within the time frame specified, the Division may:

(a) Modify or terminate the lease or permit, and/or

(b) Request the Attorney General to take appropriate legal action against the lessee or permittee.

R651-700-20. Abandonment or ROW, Easement, or Lease.

(1) If within 365 days of the date of execution of a ROW, Easement or lease a grantee/lessee fails to construct and install the infrastructure which necessitate the grantee/lessee's acquisition of a ROW, Easement or lease, or the grantee/lessee otherwise fails to use all of any portion of a ROW, Easement or lease, that portion of the ROW, Easement or lease so unused shall be deemed abandoned and the grantee/lessee's leasehold interest in said portion of the ROW or lease shall be terminated with no compensation due from the Division.

(2) If proof of grantee/lessee's use of all or portion of the ROW, Easement or lease cannot be provided for any continuous three year period, that portion of the ROW, Easement or lease shall be deemed abandoned and the grantee/lessee's leasehold interest in said portion of the ROW, Easement or lease cannot be provided for any continuous three year period, that portion of the ROW, Easement or lease shall be deemed abandoned and the grantee/lessee's leasehold interest in said portion of the ROW, Easement or lease shall be terminated with no compensation due from the Division.

R651-700-21. ROW, Easement, Special Use Leases and Special Use Permits - Reconsideration of Decision.

(1) An applicant or any other person adversely affected by the issuance of denial may request that the Director or the parks Board, depending upon which entity made the decision, reconsider the decision:

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

(b) If the Director made the decision of concern, she/he may affirm the decision, issue a new or modified decision, or request the applicant to submit additional information to support the appeal.

(c) If the decision was made by the parks Board, the Director may recommend to the parks Board either that the Special Use Lease or permit issuance or denial be modified based on the merits of the request.

R651-700-22. Water Rights.

(1) It is the policy of the Division of Parks and Recreation to use its water resources for beneficial purposes in support of public recreation, including but not limited to, protecting scenic attractions and recreational values for the present and future citizens of Utah.

KEY: property

Date of Enactment of Last Substantive Amendment: 2009

Authorizing, Implemented, or Interpreted Law: 79-4; 79-4-203; 79-4-203.5(a)