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 Puerto Rico Access Easement (3-PR-b)

Information current as of 2022
In Puerto Rico, a developer may need an Access Easement from a local municipality to develop utility services across land owned by or presently acquired by a municipality. The Autonomous Municipalities Act authorizes municipalities to require licenses or permits for a private entity (developer) to use roads, land, and air under municipal jurisdiction P.R. Laws tit. 21 §§ 4001(gg), (hh). The Act also delegates powers to municipalities to adopt specific procedures for the application and for the grant of the easement. P.R. Laws tit. 21 § 4661.



Puerto Rico Access Easement Process


3-PR-b.1 – Is the Project a Solution to a Situation Created by a Declared State of Emergency?

A developer may be allowed to forgo standard approval and permitting processes for transmission projects and instead comply with chapter 2.5 of the P.R. Reg. No. 9233, Joint Regulation 2020 (Joint Regulation 2020) if the project is a solution to a situation created by a declared state of emergency. Projects that may use these alternative procedures include:  

  • Emergency situations or events involving works, projects, or programs that do not require the issuance of any permit, recommendation, consultation or certification, will be governed by the provisions of the Executive Order issued by the Governor of Puerto Rico declaring a state of emergency. 
  • Any public work that is for the repair of a work directly affected by the emergency, will be exempt from obtaining a building permit, provided that the damage does not exceed fifty percent of the replacement value.  If the work is to be considered for federal funding, it must comply with the requirements of federal agencies such as FEMA. 
  • Any work intended to restore infrastructure affected by an emergency or natural disaster will be exempt from environmental compliance. 
  • Any work or activity carried out to restore or rehabilitate infrastructure directly affected by an emergency or natural disaster will be exempt from the processes of construction permits, general permits or any other permit required at the State level by decree of the Governor and the President of the United States and must therefore comply with the requirements of the Federal agencies involved in the emergency situation. Joint Regulation 2020 § 2.5.1.4 .

3-PR-b.2 to 3-PR-b.3 –Waiver Application

The developer must submit a Waiver Application (Application) to the Puerto Rico Permits Management Office (OGPe) during a Legal Pre-Consultation. The Application must include the following:  

  • The location of the project in accordance with Rule 2.1.6 of Joint Regulation 2020 (State Plane Coordinates System); 
  • An explanatory report detailing that the project complies with the provisions of the Order issued by the Governor of Puerto Rico or the President of the United States of America that declares a state of emergency; 
  • An explanation of how the project solves or lessens the declared state of emergency; 
  • A certification, if applicable, that the project qualifies as a Categorical Exclusion (CATEX). If the project does not qualify as a CATEX, the applicable environmental document must be submitted;  
    • Note: Any work meant to reestablish the infrastructure affected by an emergency or natural disaster is exempt from environmental compliance; and  
  • A list of permits, certifications, authorizations, licenses, or consultations for which the emergency waiver is requested. Joint Regulation 2020 §§ 2.5.2.1-2. 

If the developer is also required to provide evidence of environmental compliance along with the Application, it must include the following:  

  • Evidence of compliance with the Environmental Public Policy Act;  
  • The location of the project in accordance with Rule 2.1.6 of Joint Regulation 2020 (State Plane Coordinates System); 
  • Blueprints that show: 
    • Property boundary lines and physical elements, including borders, setbacks, access, internal service and maintenance roads and highways, substations, transmission lines, distribution lines and other accessory structures, among others; and 
    • Proposed changes to the land where the project is to be located, levels, vegetation to be removed, proposed plantations, and exterior lighting; 
  • An Explanatory Memorandum that discusses: 
    • The nature of the project, the context in which it is proposed, applicable laws, regulations, public policy, land use or management plans, susceptibility to flooding of the property, proposed infrastructure and any other aspect deemed necessary; 
    • The benefit that the community will obtain if the proposed project is approved, and how the project solves or alleviates the declared state of emergency or responds to public interest; 
    • Any variation or exception requested must be justified in accordance with the applicable regulatory provisions; 
    • Description of the property in which the action is planned, the surface area occupied by the activity, by the constructions, and facilities and its fundamental characteristics; and 
    • Identification of all state or local roads that will be used during the construction, operation, and maintenance of the facilities. 
  • If the project is on publicly owned land, the proponent will submit evidence that it is the owner of the property or that is appropriately authorized to develop it. 
  • If the project is on privately owned land, the proponent will submit reliable evidence that it has notified the owner of the property, such as a letter sent by e-mail, regular mail, direct notification or public notice in a newspaper of general circulation that includes the cadastral number, physical address, and name of the owner if available. Joint Regulation 2020 §§ 2.5.3.3. 

Alternatively, the developer may submit the applicable form on the OGPe web portal to provide evidence that they already circulated the required environmental documents to the relevant agencies. Joint Regulation 2020 §§ 2.5.3.4. 

3-PR-b.4 – Issue Recommendation to Interagency Fast Track Environmental Compliance Sub-Committee (If Applicable)

If the developer was required to submit an environmental document as part of the Waiver Application, the OGPe’s Division of Evaluation of Environmental Compliance (DECA) will have ten workdays from when the document is filed to provide a recommendation to the Interagency Fast Track Environmental Compliance Sub-Committee (Sub-Committee), which is formed by the Executive Order declaring the emergency. This timeline may be extended up to 45 days by the Sub-Committee to harmonize the timeline with the realistic completion of the required studies or the actual planned start date of the project construction. DECA, the Sub-Committee, or the Permit Unit may request additional information related to the evaluation of the environmental documents. Joint Regulation 2020 §§ 2.5.2.2.  

3-PR-b.5 – Provide Notice of the Project

The developer must publish notice of the project in two (2) general circulation newspapers and also provide a sign giving notice at the location of the project.  

3-PR-b.6 to 3-PR-b.9 – Publish Notice of Public Hearing (If Applicable)

The Permit Unit must publish notice of a public hearing if it determines that a public hearing on the Application is relevant or necessary to perform its duties. Joint Regulation 2020 §§ 2.5.3.3, 2.5.3.5. Anyone who has a legitimate interest in the Application may provide comments at the hearing held by the OGPe Examining Officer. Any party may also submit written comments within three (3) days of the end of the hearing. Once the hearing concludes and all comments have been received, the OGPe Examining Officer must submit their report to the OGPe Adjudicatory Board within two (2) days. Joint Regulation 2020 §§ 2.5.3.3, 2.5.3.5.  

3-PR-b.10 to 3-PR-b.12 – Review Application for Approval

The Permit Unit must issue a decision within five (5) workdays on whether the project qualifies for the waiver under the Joint Regulation. Joint Regulation 2020 § 2.5.2.1. If OGPe does not provide a response to the Application within five (5) workdays, it is understood that there is no recommendation regarding the project. Qualifying projects are exempt from may fees required for the granting of permits, recommendations, consultations, or certifications. Joint Regulation 2020 §§ 2.5.2.1–2.  

3-PR-b.13 to 3-PR-b.14 – Appeal (Optional)

Any party adversely affected by the final determination of the OGPe Adjudicatory Board may appeal the decision. Joint Regulation 2020 § 2.5.3.6. If the developer does not receive a waiver, they must continue to the standard permit process.  

3-PR-b.15 – Review Access Easement Application Regulations (If Applicable)

A developer should contact the relevant municipal authorities for more information on the process and requirements for obtaining an Access Easement for utility work to be completed on publicly owned land, as well as information regarding existing infrastructure within the proposed project area.

Under the Autonomous Municipalities Act, each municipality may set its own regulations for the application and grant of the access easement, subject to the restriction that a developer may not construct aerial cabling where the project area already contains underground cabling. P.R. Laws tit. 21 § 4661.


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