SUBCHAPTER B. RIGHTS-OF-WAY OVER PUBLIC LANDS
The commissioner of the General Land Office (GLO) proposes amendments to 31 TAC, Part 1, Chapter 13, relating to Land Resources, Subchapter B, relating to Rights-of-Way Over Public Lands, §13.17, relating to Fees for Right-of-Way Easements.
The intent of this rulemaking is to amend the applicable fees for pipeline right-of-way easements across public lands and to change the number of and boundaries of the regions that define the geographic limits to which the fees apply. References to renewal terms are deleted in one case and modified in another in order to allow the commissioner the flexibility to deal with the merits of each easement, as provided for by statutory changes made during the 80th Legislature by Senate Bill 654.
BACKGROUND AND SECTION-BY-SECTION ANALYSIS OF PROPOSED AMENDMENTS
Section 13.17(a) substitutes the Attached Graphic with a new graphic that provides revised rate schedules for 10 and 20-year pipeline easement terms and also provides a revised Pipeline Easements Regions Map. The rate schedule includes notes that ascribe processing fees, minimum easement rates, an annual rate adjustment index, and clarifications about the applicability of the rates. The current pipeline easement rates were established in February 1984 and they were applied to standard 10-year easement terms. The Regions map was also established in 1984.
Section 13.17(c) strikes a phrase requiring a renewal term of 10 years for easements initially issued after December 31, 1983. Striking this enables the commissioner to work with the grantee on renewal terms under the discretion provided by §§51.291 et seq. Texas Natural Resource Code (TNRC).
Section 13.17(d) changes from 10 years to 20 years in a phrase that allows the commissioner to renew easements for any length of time less than the 20 years, and retains the language that specifies that the rate for renewal for a specific period of time will be prorated accordingly.
FISCAL AND EMPLOYMENT IMPACTS
Mr. Rene Truan, Deputy Commissioner for the GLO's Professional Services Program Area, has determined that for each year of the first five years the amended sections as proposed are in effect there will be no additional cost to state government as a result of enforcing or administering the amended sections. Administration of the proposed amendments to §13.17(a) will cause an increase in revenue to the Permanent School Fund, and an increase in state revenue as both rent and fee rates are increased by the changes.
Mr. Truan has determined that for each year of the first five years the amended sections as proposed are in effect there will be no fiscal implications for local governments as a result of enforcing or administering the amended sections.
Mr. Truan has also determined that for each year of the first five years the amended sections as proposed are in effect there will be increased economic costs to businesses that secure new pipeline easements or renew expiring contracts. It has been determined by the GLO that since the rates for pipeline easements has not changed since 1984 an increase is necessary in order for the Permanent School Fund to receive fair compensation for the use of its land. The method used to establish the proposed increase in rates involved calculating the historical increase in the Consumer Price Index between February 1984 and December 2007, and applying this increase to the current rate. This resulted in an average increase of about 200 per cent. The current minimum rate for a pipeline easement is proposed to increase by 34 per cent. The current fee for contract events such as amendments, assignments, and renewals is proposed to increase 600 per cent to capture the administrative costs associated with such events. A new, one-time damages fee is proposed for all new easements. The historical term for a pipeline easement has been 10 years and the proposed change allows terms up to 20 years, resulting in a doubling of the 10-year rate.
The proposed rate increases would result in the Permanent School Fund (PSF) no longer charging the lowest rate as compared to what other large-acreage land owners charge and would keep the new rates below the highest levels that comparable owners charge.
The proposed change to the boundary map essentially combines two regions west of the coastal counties and results in three regions instead of the current four regions. There is no current reason tied to operations that support maintaining four regions.
The board has determined that the proposed rulemaking will have no adverse local employment impact that requires an impact statement pursuant to Texas Government Code §2001.022.
PUBLIC BENEFIT
Mr. Truan has determined that the public will benefit from the proposed amendments because the administration of pipeline easements on public land will predominantly move to a twenty year cycle rather than the current ten year cycle, thus saving processing time for easement renewals. In addition, additional revenue deposited to the Permanent School Fund ultimately benefits K-12 school children of Texas.
TAKINGS IMPACT ASSESSMENT
The GLO has evaluated the proposed rulemaking in accordance with Texas Government Code, §2007.043(b), and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines, to determine whether a detailed takings impact assessment is required. The GLO has determined that the proposed rulemaking does not affect private real property in a manner that requires real property owners to be compensated as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Article I, Sections 17 and 19, of the Texas Constitution. Furthermore, the GLO has determined that the proposed rulemaking would not affect any private real property in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the rule amendments. The GLO has determined that the proposed rulemaking will not result in a taking of private property and that there are no adverse impacts on private real property interests inasmuch as the property subject to the proposed amendments is owned by the state.
CONSISTENCY WITH CMP
The proposed rulemaking is subject to the CMP, 31 TAC §505.11(a)(1)(C)-(I) and §505.11(c), relating to the Actions and Rules Subject to the CMP. The GLO has reviewed these proposed actions for consistency with the CMP's goals and policies in accordance with the regulations of the Coastal Coordination Council (Council). The applicable goals and policies are found at 31 TAC §501.12 (relating to Goals); §501.17 (Relating to Policy for Construction, Operation, and Maintenance of Oil and Gas Exploration and Production Facilities); and §501.23 (relating to Policies for Development in Critical Areas); and §501.24 (relating to Policies for Construction of Waterfront Facilities and Other Structures on Submerged Lands). The proposed rulemaking changes only the amount of compensation paid for easements, not the manner in which operations are conducted. Therefore, since requests for the use of coastal public land must continue to meet the same criteria for GLO approval, the GLO has determined that the proposed actions are consistent with applicable CMP goals and policies. The proposed amendments will be distributed to Council members in order to provide them an opportunity to provide comment on the consistency of the proposed new rules during the comment period.
PUBLIC COMMENT REQUEST
To comment on the proposed rulemaking or its consistency with the CMP goals and policies, please send a written comment to Mr. Walter Talley, Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, Texas 78711, facsimile number (512) 463-6311 or email to walter.talley@glo.state.tx.us. Written comments must be received no later than 5:00 p.m., thirty (30) days from the date of publication of this proposal.
STATUTORY AUTHORITY
The amendments are proposed under the Texas Natural Resources Code §§51.291 - 51.307, relating to the commissioner's ability to grant easements or other interests in property for rights-of-way or access across, through and under state public land; and Texas Natural Resources Code §51.014(a) and §51.014(b), providing that the commissioner may adopt procedural and substantive rules which it considers necessary to administer, implement and enforce Chapter 51, Texas Natural Resources Code, with the approval of the governor.
Texas Natural Resources Code §§51.291 - 51.307 are affected by the proposed amendments.
§13.17.Fees for Right-of-Way Easements.
(a) The following table lists the fees and terms for pipeline right-of-way easements across public lands as established by the commissioner of the General Land Office.
Figure: 31 TAC §13.17(a) (.pdf)
(b) (No change.)
(c) Right-of-way easements issued for new pipelines
after December 31, 1983, shall be renewed [for an additional
10-year term] at the full rate applicable to pipelines at the
time of renewal, provided grantee has complied with all the terms
and conditions of the easement agreement, including the notice, application,
renewal fee payment, and documentation requirements contained therein.
(d) At the commissioner's discretion, a right-of-way
easement for pipelines may be renewed for a term less than
20 [10
] years and the rates prorated accordingly.
(e) - (f) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 9, 2008.
TRD-200802992
Larry L. Laine
Chief Clerk/Deputy Land Commissioner
General Land Office
Earliest possible date of adoption: July 20, 2008
For further information, please call: (512) 475-1859