W. Va. Code R. § 59-1-6

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 59-1-6 - Acquisition, Management And Disposition Lands And Water

6.1. Land Eligible for Acquisition.

6.1.a. Land adversely affected by past coal mining practices may be acquired with monies from the Abandoned Mine Reclamation Fund if approved in advance by OSMRE. Prior to approval of the acquisition of such land, the OSMRE shall find in writing that acquisition is necessary for successful reclamation, and that:

6.1.a.1. The acquired land will serve recreation, historic, conservation and reclamation purposes or provide open space benefits after restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices; and

6.1.a.2. Permanent facilities such as a mine drainage treatment plant or a relocated stream channel will be constructed on the land for the restoration, reclamation, abasement, control, or prevention of the adverse effects of past coal mining practices.

6.1.b. Coal refuse disposal sites and all coal refuse thereon may be acquired with monies from the Fund by West Virginia if approved in advance by OSMRE. Prior to approval of the acquisition of such sites, OSMRE shall find in writing that the acquisition of such land is necessary for successful reclamation and will serve the purposes of the Abandoned Mine Land Reclamation Program or that public ownership is desirable to meet an emergency situation and prevent recurrence of adverse effects of past coal mining practices.

6.1.c. Land adversely affected by past mining practices may be acquired by WVDEP if OSMRE finds in writing that acquisition with monies from the Fund is an integral and necessary element of an economically feasible plan for a project to construct or rehabilitate housing for:

6.1.c.1. Persons disabled as the result of employment in the mines or work incidental thereto;

6.1.c.2. Persons displaced by acquisition of land under these regulations;

6.1.c.3. Persons dislocated as the result of adverse effects of coal mining practices which constitute an emergency for which OSMRE has made the determination; or

6.1.c.4. Persons dislocated as the result of natural disasters or catastrophic failures from any cause.

6.1.d. The WVDEP may acquire such land in the name of the State of West Virginia directly or through any division agency, or instrumentality of the state or any public body or nonprofit organization designated by the WVDEP.

6.1.e. Land or interests in land needed to fill voids, seal abandoned tunnels, shafts, and entryways or reclaim surface impacts of underground or surface mines may be acquired by the WVDEP if the Director finds that acquisition is necessary.

6.1.f. The WVDEP acquiring land under this part shall acquire only such interests in the land as are necessary for the reclamation work planned. The post-reclamation use of the land, mineral rights, or associated water rights may be acquired if:

6.1.f.1. The customary practices and laws of the State will not allow severance of such interests from the surface estate; or

6.1.f.2. Such interests are necessary to the reclamation work planned or the post-reclamation use of the land; and

6.1.f.3. Adequate written assurances cannot be obtained from the owner of the severed interest that future use of the severed interest will not be in conflict with the reclamation to be accomplished.

6.2. Procedures for Acquisition.

6.2.a. An appraisal of the fair market value of all land or interest in land to be acquired shall be obtained from a professional appraiser by the WVDEP. The appraisal shall state the fair market value of the land as adversely affected by past mining and shall otherwise conform to the requirements of the handbook on "Uniform Appraisal Standards for Federal Land Acquisitions" (Inter-agency Land Acquisition Conference 1973).

6.2.b. When practical, acquisition shall be by purchase from a willing seller. The amount paid for interests acquired shall reflect the fair market value of the interests as adversely affected by past mining.

6.2.c. When necessary, land or interests in land may be acquired by condemnation. Condemnation procedures shall not be started until all reasonable efforts have been made to purchase the land or interests in lands from a willing seller.

6.2.d. The WVDEP acquiring land under this part shall comply, at a minimum and to the extent applicable, with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Solicitor of the Interior's regulations for Approval of Title to Lands and Condemnation, 1 SR.M 6.1 et seq. and regulations of the Attorney General Under Order No. 440-70 dated October 2, 1970, establishing standards for title approval of lands to be acquired for Federal public purposes.

6.2.e. Title to all interests in land acquired by WVDEP shall be in the name of the State of West Virginia for the use and benefit of WVDEP and shall be recorded in accordance with applicable State law and regulation.

6.3. Acceptance of gifts of land.

6.3.a. The Director, under an approved Reclamation Plan, may accept donations of title to land or interest in land that is necessary for reclamation activities. A donation shall not be accepted if the terms or conditions of acceptance are inconsistent with the objectives or requirements of the program.

6.3.b. Offers to make a gift of such land or interest in land shall be in writing and shall include:

6.3.b.1. A statement of the interest which is being offered;

6.3.b.2. A legal description of the land and a description of any improvements on it;

6.3.b.3. A description of any limitations on the title or conditions as to the use or disposition of the land existing or to be imposed by the donor;

6.3.b.4. A statement that:

6.3.b.4.A. The offerer is the record owner of the interest being offered;

6.3.b.4.B. The interest offered is free and clear of all encumbrances except as clearly stated in the offer;

6.3.b.4.C. There are no adverse claims against the interest offered;

6.3.b.4.D. There are no unredeemed tax deeds outstanding against the interest offered; and

6.3.b.4.E. There is no continuing responsibility by the operator under State or Federal statutory law for reclamation.

6.3.b.5. An itemization of any unpaid taxes or assessments levied, assessed or due which could operate as a lien on the interest offered.

6.3.c. If the offer is accepted, a deed of conveyance shall be executed, acknowledged, and recorded. The deed shall state that it is made "as a gift under the Surface Mining Control and Reclamation Act of 1977." Title to donated land shall be in the name of the WVDEP if the donation is to the State of West Virginia.

6.4. Management of Acquired Lands.

6.4.a. Land acquired under this section may be used pending disposition under 6.5 of this section for any lawful purpose that is not inconsistent with the reclamation activities and post-reclamation uses for which it was acquired.

6.4.b. Any user of land acquired under this part shall be charged a use user fee. The fee shall be determined on the basis of the fair market value of the benefits granted to the user, charges for comparable uses within the surrounding area, or the costs to the WVDEP for providing the benefit, whichever is appropriate. The WVDEP may waive the fee if found in writing that such a waiver is in the public interest.

6.4.c. All use fees collected shall be deposited in the appropriate Abandoned Mine Reclamation Fund unless previously appropriated or otherwise authorized by the State legislature, for the specific purpose of operating and maintaining improvement of the land.

6.5. Disposition of Reclaimed Lands.

6.5.a. Prior to the disposition of any land acquired under this Part, the WVDEP shall:

6.5.a.1. Publish a notice which describes the proposed disposition of the land in a newspaper of general circulation within the area where the land is located for a minimum of four (4) successive weeks. The notice shall provide at least thirty (30) days for public comment and state where copies of plans for disposition of the land may be obtained or reviewed and the address to which comments on the plans should be submitted. The notice shall also state that a public hearing will be held by request by any person;

6.5.a.2. Hold a public hearing if requested as a result of the public notice. The WVDEP may determine that a hearing is appropriate even if a request is not received. It shall be scheduled at a time and place that affords local citizens and governments the maximum opportunity to participate. The time and place of the hearing shall be announced in a newspaper of general circulation in the area in which the land is located at least thirty (30) days before the hearing. All comments received at the hearing shall be recorded; and

6.5.a.3. Make a written finding that the proposed disposition is appropriate considering all comments received and consistent with any local, State, or Federal laws or regulations which apply.

6.5.b. The WVDEP may transfer, with approval of OSMRE, the administrative responsibility for land acquired under this part to any agency or political subdivision of the State with or without cost to that agency. The agreement, including amendments, under which a transfer is made shall specify:

6.5.b.1. The purposes for which the land may be used consistent with the authorization under which the land was acquired; and

6.5.b.2. That the administrative responsibility for the land will revert to the WVDEP which acquired the land if, at any time in the future, the land is not used for the purposes specified.

6.5.c. The WVDEP may, with approval by OSMRE, transfer title to abandoned and unreclaimed land to the United States to be reclaimed and administered by OSMRE, The WVDEP which transfers land to OSMRE under this paragraph shall have a preference right to purchase such land from OSMRE after reclamation is completed. The price to be paid by the WVDEP shall be the fair market value of the land in its reclaimed condition less any portion of the land acquisition price paid by the WVDEP.

6.5.d. OSMRE may sell any land acquired and reclaimed under PL 95-87, Title IV, except that acquired under section 6.1 of this rule by the WVDEP or a local Government.

6.5.d.1. Before reclaimed land is sold to the WVDEP, the purchaser shall state in writing the public purposes for which the land is to be used. The public purpose shall be considered valid if it is authorized as a public function by appropriate State law and is consistent with the conditions under which the land was acquired.

6.5.d.2. The price to be paid by WVDEP or a local government shall be the fair market value of the land in its reclaimed condition. The land may be sold at a lower price negotiated with OSMRE, but the price shall not be less than the cost to the United States for acquiring and reclaiming, the land.

6.5.d.3. The sales agreement for land sold under this paragraph shall state valid public purposes for which the land may be used. If, at any time in the future, the land is not used for the purposes stated, all rights and titles to, or interest in such land shall revert to the United States.

6.5.e. OSMRE may transfer or sell land acquired under sub-section 6.1 of this rule with or without monetary consideration, to the WVDEP or a political subdivision of West Virginia or to any person, firm, association or corporation.

6.5.e.1. The transfer or sale shall not be made unless OSMRE finds in writing that the transfer or sale is an integral and necessary element of an economically feasible plan for the project for which the land was acquired.

6.5.e.2. The price at which land is sold under subdivision 6.5.e of this subsection shall be negotiated between OSMRE and the purchaser. The price may be below the fair market value if economically necessary for the success of the project.

6.5.e.3. If the price at which the land is sold is below the fair market value of the land, or if the land is transferred at no cost to the recipient, the recipient shall agree in advance that no portion of the difference between the amount paid and the fair market value will accrue as a profit, or as an offset to other business losses, to any private person, firm, association or corporation.

6.5.e.4. The transfer or sales agreement for land disposed of under subdivision 6.5.e of this subsection shall state the purpose for which the land was acquired and will be used. If, at any time in the future, the land is not used for the purposes stated, all right, title and interest in such land shall revert to the United States.

6.5.f. The WVDEP, with the approval of OSMRE, may sell land acquired under this part by public sale if such land is suitable for industrial, commercial, residential, or recreational development and if such development is consistent with local, State, or Federal land use plans for the area in which the land is located.

6.5.f.1. Land shall be sold by public sale only if it is found that retention by or disposal under other paragraphs of this section, is not in the public interest.

6.5.f.2. Land shall be sold for not less than fair market value under a system of competitive bidding which includes at a minimum:

6.5.f.2.A. Publication of a notice once a week for four (4) weeks in a newspaper of general circulation in the locality in which the land is located. The notice shall describe the land to be sold, state the appraised value, state any restrictive covenants which will be a condition of the sale, and state the time and place of the sale;

6.5.f.2.B. Provisions for sealed bids to be submitted prior to the sale date followed by an oral auction open to the public; and

6.5.f.2.c. All monies received from disposal of land under this part shall be deposited in the appropriate abandoned mine reclamation fund.

W. Va. Code R. § 59-1-6