ORS Chapter 758 - Oregon Statutes

Chapter 758 — UtilityRights of Way and Territory Allocation; Cogeneration

 

2009 EDITION

 

 

RIGHTSOF WAY; ALLOCATION; COGENERATION

 

UTILITYREGULATION

 

RIGHTSOF WAY

 

758.010     Authorityto construct lines and facilities; requirements and conditions

 

758.015     Certificateof public convenience and necessity

 

758.020     Jointoccupancy of poles

 

758.025     Relocationof utilities in highway right of way; required consultation; recovery of costs

 

758.035     Commission’spower to enforce joint use of facilities

 

UNDERGROUNDELECTRIC AND COMMUNICATIONS FACILITIES

 

758.210     Policy

 

758.215     Definitionsfor ORS 758.210 to 758.270

 

758.220     Authorityfor conversion to underground facilities; formation of assessment district

 

758.225     Petition,ordinance or resolution for conversion; contents; filing

 

758.230     Assessmentprocedure; objections to conversion

 

758.235     Applicabilityof local improvement laws; issuance of bonds

 

758.240     Contractwith utility for conversion

 

758.245     Paymentof costs for conversion; removal of overhead facilities

 

758.250     Conversionof facilities on private lands; procedure; payment of costs

 

758.255     Discontinuanceof utility service for noncompliance with conversion provisions

 

758.260     Competitivebidding for utility conversion

 

758.265     Overheadfacilities in assessment district after conversion

 

758.270     Effectof ORS 758.210 to 758.270 on existing laws and rights

 

LIABILITYOF ELECTRIC UTILITY FOR PRUNING AND REMOVING VEGETATION

 

758.280     Definitionsfor ORS 758.280 to 758.286

 

758.282     Immunityof electric utility for pruning or removing vegetation in certain cases

 

758.284     Immunityof electric utility for pruning or removing vegetation in other cases; noticeto property owner

 

758.286     Immunitynot applicable to liability for cost of abating fires

 

WATERUTILITIES

 

758.300     Definitionsfor ORS 758.300 to 758.320

 

758.302     Applicationfor exclusive service territory

 

758.305     Exclusiveservice territories

 

758.310     Assignmentor transfer of rights in exclusive service territory; approval of commission

 

758.315     Waterutility service provided by persons not designated by commission; remedy

 

758.320     Applicationof ORS 758.300 to 758.320 to cities; effect on certain voluntary associations;existing franchise; exception

 

ELECTRICAND GAS UTILITIES; ALLOCATION OF TERRITORIES AND CUSTOMERS

 

758.400     Definitionsfor ORS 758.015 and 758.400 to 758.475

 

758.405     Purposeof ORS 758.400 to 758.475

 

758.410     Contractsfor allocation of territories and customers; transfer of facilities

 

758.415     Enforceabilityof contract approved by commission; conditions for approval

 

758.420     Filingof contract; hearing on contract; notice

 

758.425     Orderof commission on contract

 

758.430     Amendmentof contract; approval of commission

 

758.435     Applicationfor allocation of territory; hearing; notice

 

758.440     Orderof commission on application

 

758.445     Judicialreview of order on application

 

758.450     Contractrequired for allocation of territory; prohibited activities; exceptions; thirdparty financing

 

758.455     Investigationby commission respecting contracts or applications; hearing procedure

 

758.460     Assignmentor transfer of rights acquired by allocation; approval of commission

 

758.465     Enforcementprocedure

 

758.470     Applicationto cities, municipalities and cooperatives of ORS 758.400 to 758.475

 

758.475     Fees

 

TROJANNUCLEAR PLANT

 

758.480     Assumptionof obligations arising out of Trojan Nuclear Plant

 

COGENERATIONAND SMALL POWER PRODUCTION FACILITIES

 

758.505     Definitionsfor ORS 758.505 to 758.555

 

758.515     Legislativefindings

 

758.525     Avoidedcost schedules; filing; requirement to purchase energy from qualifyingfacilities

 

758.535     Criteriafor qualifying facility; terms and conditions of energy sale

 

758.545     Electricutility required to make good faith effort to transmit energy; remedy

 

758.555     Effectof energy sales on qualifying facility

 

RIGHTSOF WAY

 

      758.010Authority to construct lines and facilities; requirements and conditions. (1) Exceptwithin cities, any person or corporation has a right and privilege toconstruct, maintain and operate its water, gas, electric or communicationservice lines, fixtures and other facilities along the public roads in thisstate, as defined in ORS 368.001 or across rivers or over any lands belongingto the state, free of charge, and over lands of private individuals, asprovided in ORS 772.210. Such lines, fixtures and facilities shall not beconstructed so as to obstruct any public road or navigable stream.

      (2)A county governing body and the Department of Transportation have authority todesignate the location upon roads under their respective jurisdiction, outsideof cities, where lines, fixtures and facilities described in this section maybe located, and subject to ORS 758.025 may order the location of any such line,fixture or facility to be changed when such governing body or department deemsit expedient. Any line, fixture or facility erected or remaining in a differentlocation upon such road than that designated in any order of the governing bodyor department is a public nuisance and may be abated accordingly.

      (3)The state officer, agency, board or commission having jurisdiction over anyland belonging to the state with respect to which the right and privilegegranted under subsection (1) of this section is exercised may impose reasonablerequirements for the location, construction, operation and maintenance of thelines, fixtures and facilities on such land. The person or corporationexercising such right and privilege over any land belonging to the state shallpay the current market value for the existing forest products that are damagedor destroyed in exercising such right and privilege. Such right and privilegeof any person or corporation is conditioned upon compliance with therequirements imposed by this subsection. [Amended by 1955 c.123 §1; 1971 c.655 §100;1981 c.153 §76; 2001 c.664 §§3,6; 2009 c.444 §4]

 

      758.015Certificate of public convenience and necessity. (1) When anyperson, as defined in ORS 758.400, providing electric utility service, asdefined in ORS 758.400, or any transmission company, proposes to construct anoverhead transmission line which will necessitate a condemnation of land or aninterest therein, it shall petition the Public Utility Commission for acertificate of public convenience and necessity setting forth a detailed descriptionand the purpose of the proposed transmission line, the estimated cost, theroute to be followed, the availability of alternate routes, a description ofother transmission lines connecting the same areas, and such other informationin such form as the commission may reasonably require in determining the publicconvenience and necessity.

      (2)The commission shall give notice and hold a public hearing on such petition.The commission, in addition to considering facts presented at such hearing,shall make the commission’s own investigation to determine the necessity,safety, practicability and justification in the public interest for theproposed transmission line and shall enter an order accordingly. The ordershall be subject to review as in other cases. In any proceeding forcondemnation, a certified copy of such order shall be conclusive evidence thatthe transmission line for which the land is required is a public use andnecessary for public convenience.

      (3)This section shall not apply to construction of transmission lines inconnection with a project for which a permit or license is otherwise obtainedpursuant to state or federal law.

      (4)As used in this section and ORS 758.020, “transmission company” means a personor entity that owns or operates high voltage transmission lines and is subjectto the jurisdiction of the Federal Energy Regulatory Commission. “Transmissioncompany” does not include a cooperative organized under ORS chapter 62. [1961c.691 §19; 2001 c.913 §6]

 

      758.020Joint occupancy of poles. (1) The county court, board of county commissionersor the Department of Transportation, when designating the location where polesor other aboveground facilities described in ORS 758.010 may be placed on aroad or highway which fronts on the ocean or on a river or other body of waterand the water frontage of the highway is being developed or maintained for itsscenic or recreational value, may require all lines to occupy the opposite sideof the right of way, if such joint occupancy can be maintained without undueimpairment of service or damage to public life and property.

      (2)If the owners of such lines are unable to agree on the terms and conditions ofjoint occupancy, such department, court or board shall request the PublicUtility Commission to determine the practicability of such joint occupancy andthe effect thereof upon adequate and safe service by the prospective jointoccupants, the location of the lines, and, if found to be practicable, to fixand prescribe the terms and conditions pursuant to which joint occupancy shallbe accomplished. Before making or entering an order, such commission shall holda hearing and make findings in accordance with ORS 756.500 to 756.610. Theorder of the commission is subject to judicial review as an order in acontested case in the manner provided by ORS 756.610. In fixing terms andconditions pursuant to which joint occupancy shall be accomplished, the PublicUtility Commission shall require the installation by each occupant ofstandards, devices and equipment reasonably necessary to protect the equipmentof the other occupants from damage and the public from injury arising from suchjoint occupancy.

      (3)The right of any public utility, telecommunications utility or transmissioncompany to construct, maintain and operate on a public highway poles orfixtures is contingent on compliance with reasonable requirements establishedby the Department of Transportation, county courts, boards of countycommissioners or the Public Utility Commission under authority of this sectionand ORS 758.010. Such rights are likewise contingent and conditioned on allfacilities, equipment and installations being constructed and maintained instrict conformance with modern and approved standards. [Amended by 1971 c.655 §102;1987 c.447 §98; 2001 c.913 §7; 2005 c.638 §11]

 

      758.025Relocation of utilities in highway right of way; required consultation;recovery of costs.(1) As used in this section:

      (a)“Highway” has the meaning given that term in ORS 801.305 (1) but does notinclude highways located on property owned by the Port of Portland that issubject to federal relocation regulations authorized under 49 U.S.C. 47107, asin effect on January 1, 2010.

      (b)“Public body” has the meaning given that term in ORS 174.109.

      (c)“Utility” means a public utility, as defined in ORS 757.005, or atelecommunications utility or competitive telecommunications provider, as thoseterms are defined in ORS 759.005.

      (2)If a public body plans a project that would require utilities to relocate theirutility facilities that are located in the highway right of way, the publicbody shall notify affected utilities of the project in writing as soon as ispracticable.

      (3)During the planning and design phase of a project, the public body shall coordinatewith the affected utilities to discuss the project’s scope and schedule. At aminimum, the discussion must include a description of the plans, goals andobjectives of the proposed project and options to minimize or eliminate coststo the public body and the utilities. The public body is not required to avoidor minimize costs to the utilities in a way that materially affects the project’sscope, costs or schedule. Failure of the affected utilities to respond orparticipate in the coordination or discussion does not affect the ability ofthe public body to proceed with design and construction of the project.

      (4)A public body having jurisdiction over a highway may not prohibit a utilityfrom seeking reimbursement from private parties or customers for costs underthis section in any permit application, license application or other writtenagreement authorizing the utility to relocate the facilities.

      (5)(a)Notwithstanding any other provision of ORS chapter 759, a telecommunicationsutility that is not subject to rate-of-return regulation, including a utilityregulated under ORS 759.255 may, after participating in the process describedin subsection (3) of this section, request authorization from the PublicUtility Commission to recover from customers prudent costs incurred for therelocation of facilities required by a public body that are not otherwise paidor reimbursed from another source. Recoverable relocation costs are thenonfacility costs incurred in the relocation plus the undepreciated value ofthe facilities replaced, including the cost of placing such facilitiesunderground if underground placement is required by the public body or otherprovision of law. The commission may authorize the recovery of relocation coststhat the commission determines to be substantial and beyond the normal courseof business.

      (b)The commission shall:

      (A)Verify the relocation costs for which the utility requests recovery;

      (B)Determine the allocation of costs between interstate and intrastate services,geographic areas, customers and services; and

      (C)Prescribe the method of cost recovery.

      (c)In determining the level of cost recovery and the allocation of costs, thecommission shall consider:

      (A)The overall impact on the utility; and

      (B)Other relevant factors identified by the commission.

      (d)Relocation costs may be recovered for a reasonable period of time subject toapproval by the commission and not to exceed the depreciable life of thefacilities. [2009 c.444 §2]

 

      758.030 [Renumbered271.440]

 

      758.035Commission’s power to enforce joint use of facilities. (1) Everypublic utility, telecommunications utility, person, association or corporationhaving conduits, subways, street railway tracks, poles or other equipment on,over or under any street or highway shall for a reasonable compensation permitthe use of the same by any public utility or telecommunications utilitywhenever public convenience or necessity requires such use and such use willnot result in irreparable injury to the owner or other users of such equipmentnor in any substantial detriment to the service to be rendered by such ownersor other users.

      (2)In case of failure to agree upon such use or the conditions or compensation forsuch use, any public utility, telecommunications utility, person, associationor corporation interested may apply to the Public Utility Commission, and ifafter investigation the commission ascertains that public convenience ornecessity requires such use and that it would not result in irreparable injury tothe owner or other users of such equipment, the commission shall by orderdirect that such use be permitted and prescribe reasonable conditions andcompensation for such joint use.

      (3)The use so ordered shall be permitted and the prescribed conditions andcompensation shall be the lawful conditions and compensation to be observed,followed and paid. The order of the commission is subject to judicial review asan order in a contested case in the manner provided by ORS 756.610. The ordermay be modified by the commission upon application of any interested party orupon the commission’s own motion. All public utilities and telecommunicationsutilities shall afford all reasonable facilities and make all necessaryregulations for the interchange of business, or traffic carried or theirproduct between them, when ordered by the commission so to do. [Formerly757.040; 1987 c.447 §99; 2005 c.638 §12]

 

      758.040 [Renumbered757.606]

 

      758.050 [Renumbered757.611]

 

      758.060 [Amended by1971 c.743 §426; renumbered 757.616]

 

      758.070 [Renumbered757.621]

 

      758.080 [Renumbered757.626]

 

      758.090 [Renumbered757.631]

 

      758.100 [Renumbered757.636]

 

      758.110 [Renumbered757.641]