H.B. 137 Enrolled

1

TRANSPORTATION CHANGES
2 2011 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Kenneth W. Sumsion
5 Senate Sponsor: Mark B. Madsen
6
7 LONG TITLE
8 General Description:
9 This bill modifies State Lands and the Transportation Code by amending provisions
10 relating to the construction of highway facilities over sovereign lands.
11 Highlighted Provisions:
12 This bill:
13 . provides that Division of Forestry, Fire, and State Lands may not issue a lease for
14 the construction of a highway facility over sovereign lakebed lands unless the
15 applicant for the lease submits an approval for the construction of the highway
16 facility from the Transportation Commission with the application for the lease;
17 . specifies requirements for a lease for the construction of a highway facility over
18 sovereign lakebed lands;
19 . requires the Transportation Commission to review and approve plans for the
20 construction of a highway facility over sovereign lakebed lands;
21 . specifies requirements for an application for approval from the Transportation
22 Commission to construct a highway facility over sovereign lakebed lands;
23 . grants the Transportation Commission rulemaking authority to establish minimum
24 guidelines for an application to construct a highway facility over sovereign lakebed
25 lands;
26 . requires the private entity, as part of an approval for the construction of a highway
27 facility over sovereign lakebed lands, to enter an agreement with the Department of
28 Transportation authorizing the department to assure the safety of the design,
29 construction, operation, and maintenance of the facility; and

30 . makes technical changes.
31 Money Appropriated in this Bill:
32 None
33 Other Special Clauses:
34 None
35 Utah Code Sections Affected:
36 AMENDS:
37 65A-7-5, as last amended by Laws of Utah 1997, Chapter 10
38 65A-10-1, as last amended by Laws of Utah 1994, Chapter 294
39 72-1-303, as last amended by Laws of Utah 2009, Chapter 364
40 ENACTS:
41 72-6-301, Utah Code Annotated 1953
42 72-6-302, Utah Code Annotated 1953
43 72-6-303, Utah Code Annotated 1953
44
45 Be it enacted by the Legislature of the state of Utah:
46 Section 1. Section 65A-7-5 is amended to read:
47 65A-7-5. Surface leases -- Procedures for issuing leases -- Leases for the
48 construction of a highway facility.
49 (1) The division may issue surface leases of state lands for any period up to 99 years.
50 (2) This section does not apply to leases for oil and gas, grazing, or mining purposes.
51 (3) The division shall disclose any known geologic hazard affecting leased property.
52 (4) (a) (i) Surface leases may be entered into by negotiation, public auction, or other
53 public competitive bidding process as determined by rules of the division.
54 (ii) Requests for proposals (RFP) on state lands may be offered by the division after
55 public notice.
56 (b) (i) A notice of an invitation for bids or a public auction shall, prior to the auction or
57 acceptance of a bid, be published at least once a week for three consecutive weeks in one or

58 more newspapers of general circulation in the county in which the lease is offered.
59 (ii) The notice shall be sent, by certified mail, at least 30 days prior to the auction or
60 acceptance of a bid, to each person who owns property adjoining the state lands offered for
61 lease.
62 (c) (i) Surface leases entered into through negotiation shall be published in the manner
63 set forth in Subsection (4)(b) 30 days prior to final approval.
64 (ii) The notice shall include, at a minimum, a general description of the lands proposed
65 for lease and the type of lease.
66 (5) (a) The division may not issue a lease for the construction of a highway facility
67 over sovereign lakebed lands unless the applicant for the lease submits an approval for the
68 construction of a highway facility over sovereign lakebed lands from the Transportation
69 Commission in accordance with Section 72-6-303 with the application for the lease.
70 (b) The division shall consider the information and analysis provided by the
71 Transportation Commission under Section 72-6-303 when making its determination as to
72 whether to issue a lease for the construction of a highway facility over sovereign lakebed lands.
73 (c) A lease for the construction of a highway facility over sovereign lakebed lands:
74 (i) may include an option to renew the lease upon expiration; and
75 (ii) shall include a provision that requires that at the termination of the lease:
76 (A) the ownership of the highway facility shall revert to the state;
77 (B) the highway facility shall be in a state of proper maintenance as outlined in the
78 agreement under Subsection 72-6-303 (4)(e) and determined by the Department of
79 Transportation; and
80 (C) the highway facility shall be returned to the Department of Transportation in
81 satisfactory condition at no further cost to the Department of Transportation, in a condition of
82 good repair.
83 (d) The requirements under this Subsection (5) apply to all pending and future
84 applications for a lease for the construction of a highway facility over sovereign lakebed lands.
85 Section 2. Section 65A-10-1 is amended to read:

86 65A-10-1. Authority of division to manage sovereign lands.
87 (1) The division is the management authority for sovereign lands, and may exchange,
88 sell, or lease sovereign lands but only in the quantities and for the purposes as serve the public
89 interest and do not interfere with the public trust.
90 (2) Nothing in this section shall be construed as asserting state ownership of the beds
91 of nonnavigable lakes, bays, rivers, or streams.
92 (3) A lease for the construction of a highway facility over sovereign lakebed lands shall
93 comply with the requirements described in Subsection 65A-7-5 (5).
94 Section 3. Section 72-1-303 is amended to read:
95 72-1-303. Duties of commission.
96 (1) The commission has the following duties:
97 (a) determining priorities and funding levels of projects in the state transportation
98 systems for each fiscal year based on project lists compiled by the department;
99 (b) determining additions and deletions to state highways under Chapter 4, Designation
100 of State Highways Act;
101 (c) holding public hearings and otherwise providing for public input in transportation
102 matters;
103 (d) making policies and rules in accordance with Title 63G, Chapter 3, Utah
104 Administrative Rulemaking Act, necessary to perform the commission's duties described under
105 this section;
106 (e) in accordance with Section 63G-4-301 , reviewing orders issued by the executive
107 director in adjudicative proceedings held in accordance with Title 63G, Chapter 4,
108 Administrative Procedures Act;
109 (f) advising the department in state transportation systems policy;
110 (g) approving settlement agreements of condemnation cases subject to Section
111 63G-10-401 ;
112 (h) in accordance with Section 17B-2a-807 , appointing a commissioner to serve as a
113 nonvoting, ex officio member or a voting member on the board of trustees of a public transit

114 district;
115 (i) in accordance with Section 17B-2a-808 , reviewing, at least annually, the short-term
116 and long-range public transit plans; and
117 (j) reviewing administrative rules made, amended, or repealed by the department.
118 (2) (a) For projects prioritized with funding provided under Sections 72-2-124 and
119 72-2-125 , the commission shall annually report to a committee designated by the Legislative
120 Management Committee:
121 (i) a prioritized list of the new transportation capacity projects in the state
122 transportation system and the funding levels available for those projects; and
123 (ii) the unfunded highway construction and maintenance needs within the state.
124 (b) The committee designated by the Legislative Management Committee under
125 Subsection (2)(a) shall:
126 (i) review the list reported by the Transportation Commission; and
127 (ii) make a recommendation to the Legislature on:
128 (A) the amount of additional funding to allocate to transportation; and
129 (B) the source of revenue for the additional funding allocation under Subsection
130 (2)(b)(ii)(A).
131 (3) The commission shall review and may approve plans for the construction of a
132 highway facility over sovereign lakebed lands in accordance with Chapter 6, Part 3, Approval
133 of Highway Facilities on Sovereign Lands Act.
134 Section 4. Section 72-6-301 is enacted to read:
135 Part 3. Approval of Highway Facilities on Sovereign Lands Act
136 72-6-301. Title.
137 This part is known as the "Approval of Highway Facilities on Sovereign Lands Act."
138 Section 5. Section 72-6-302 is enacted to read:
139 72-6-302. Definitions.
140 As used in this section:
141 (1) "Sovereign lands" has the same meaning as defined in Section 65A-1-1 .

142 (2) "Tollway" has the same meaning as defined in Section 72-6-118 .
143 Section 6. Section 72-6-303 is enacted to read:
144 72-6-303. Approval to construct highway facility over sovereign lakebed lands.
145 (1) (a) The commission shall review and may approve a proposed plan for the
146 construction of a highway facility over sovereign lakebed lands.
147 (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
148 commission shall make rules establishing minimum guidelines for an application to construct a
149 highway facility over sovereign lakebed lands.
150 (2) As part of an application to lease sovereign land, a private entity seeking to obtain a
151 lease over sovereign lakebed lands shall submit an application to the commission for approval
152 from the commission to construct a highway facility over sovereign lakebed lands.
153 (3) A private entity shall include in an application described in Subsection (2):
154 (a) a map indicating the location and legal description of the highway facility and all
155 proposed interconnections with other highway facilities;
156 (b) a description of the highway facility, including the conceptual design of the
157 highway facility and a statement whether the highway facility will be operated and maintained
158 as a tollway facility;
159 (c) a list of the major permits and approvals required for developing or operating
160 improvements to the highway facility from local, state, or federal agencies and a projected
161 schedule for obtaining the permits and approvals;
162 (d) a description of the types of public utility facilities, if any, that will be crossed by
163 the highway facility and a statement of the plans to accommodate the crossing;
164 (e) a description of the types of public utilities used, carried, or accommodated by the
165 highway facility and a statement of the plans to use, carry, or accommodate the public utilities;
166 (f) an estimate of the design and construction costs of the highway facility;
167 (g) a statement setting forth the private entity's general plans for constructing,
168 operating, and maintaining the highway facility, including:
169 (i) the proposed date for development, operation, or both of the highway facility;

170 (ii) the proposed term of the lease over sovereign lakebed lands; and
171 (iii) a demonstration by the private entity that the proposal is financially viable;
172 (h) the names and addresses of the persons who may be contacted for further
173 information concerning the highway facility application;
174 (i) any other material or information that the commission requires by rules made under
175 this section; and
176 (j) a statement whether or how the highway facility can safely accommodate
177 recreational fishing or other recreational activities on the highway facility.
178 (4) The commission is not required to review an application submitted under this
179 section if it determines that the proposal does not meet the guidelines established under this
180 section.
181 (5) The commission shall review an application submitted under this section and
182 approve the application if the commission determines, based upon recommendations by the
183 department, that:
184 (a) construction, operation, and maintenance of the highway facility is feasible as
185 proposed by the private entity in the application;
186 (b) the proposed highway facility is contained anywhere within the long-range highway
187 plan prepared by the department or by a metropolitan planning organization, including the
188 visionary long-range highway plan;
189 (c) the construction plan for the proposed highway facility meets the engineering and
190 design standards specified by the commission in rules made under this section;
191 (d) the proposed plan for the construction, operation, and maintenance of the highway
192 facility is financially viable, including a determination that sufficient bonding or other financial
193 assurances are in place to cover construction, operation, and maintenance of the facility; and
194 (e) the private entity has entered an agreement with the department authorizing the
195 department to assure the safety of the design, construction, operation, and maintenance of the
196 facility.
197 (6) Approval by the commission under this section does not constitute approval of the

198 lease application by the Division of Forestry, Fire, and State Lands under Section 65A-7-5 .
199 (7) An agreement under Subsection (5)(e):
200 (a) shall provide compensation to the department to cover the costs of reviewing and
201 inspecting the highway facility; and
202 (b) may include a time within which a notice to proceed can be given.
203 (8) The department may establish a fee in accordance with Section 63J-1-504 for
204 reviewing applications submitted under this section.