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State
Oregon Regulations
CHAP 141 DIVISION 82 RULES GOVERNING THE MANAGEMENT OF, AND ISSUING OF LEASES, LICENSES, TEMPORARY USE PERMITS AND REGISTRATIONS FOR STRUCTURES ON, AND USES OF STATE-OWNED SUBMERGED AND SUBMERSIBLE LAND


The Oregon Administrative Rules contain OARs filed through July 14, 2006

DEPARTMENT OF STATE LANDS


DIVISION 82
RULES GOVERNING THE MANAGEMENT OF, AND ISSUING OF LEASES, LICENSES, TEMPORARY USE PERMITS AND REGISTRATIONS FOR STRUCTURES ON, AND USES OF STATE-OWNED SUBMERGED AND SUBMERSIBLE LAND





141-082-0000

Purpose and Applicability

These rules:

(1) Govern the management of state-owned submerged and/or submersible land for a wide variety of commercial and non-commercial uses and structures such as, but not limited to:

(a) Aquaculture facilities;

(b) Marine industrial facilities;

(c) Marine service facilities;

(d) Floating homes and floating home moorages;

(e) Fish processing facilities;

(f) Log raft and log storage booming areas;

(g) Log salvage;

(h) Wharves;

(i) Navigation aids;

(j) Combination structures;

(k) Marinas, including owner-oriented facilities; boat ramps; docks; floats; boat houses; and

(l) Non-marine uses (for example, restaurants, warehouses, offices, motels, and dwellings).

(2) Establish procedures for authorizing structures on, and uses of state-owned submerged and/or submersible land by lease, registration, temporary use permit or public facility license.

(3) Do not pertain to the management of state-owned submerged and/or submersible land for the removal of sand and gravel, mineral exploration, granting of easements, or leasing of upland created from state-owned submerged and/or submersible land. These uses/activities are covered under separate Division rules.

Stat. Auth.: ORS 196.800 - ORS 196.990, ORS 273.045 & ORS 274.005 - ORS 274.994
Stats. Implemented: ORS 274
Hist.: DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0010

Policies

(1) Pursuant to Oregon law as defined in ORS 274, all tidally influenced and title navigable waterways (referred to as state-owned submerged and/or submersible land) have been placed by the Legislature under the jurisdiction of the State Land Board and the Division, as the administrative arm of the State Land Board.

(2) The State Land Board, through the Division, has a constitutional responsibility to manage "the lands under its jurisdiction with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management" pursuant to Article 8, Section 5(2) of the Oregon Constitution.

(3) State-owned submerged and/or submersible land is managed to ensure the collective rights of the public, including riparian owners, to fully use and enjoy this resource for commerce, navigation, fishing, recreation and other public trust values.

(4) No person shall place a structure on, or make use of state-owned submerged and/or submersible land without the required authorization described in these rules unless the structure or use is exempt from such authorization by law or these rules. Ownership of state-owned submerged and/or submersible land cannot be obtained by adverse possession regardless of the length of time the use or development has been in existence.

(5) All uses of state-owned submerged and/or submersible land shall conform to local (including local comprehensive land use planning and zoning ordinance requirements), state, or federal laws.

(6) An applicant shall be ineligible for an authorization under the provisions of these rules if the proposed use:

(a) Is inconsistent with local, state, or federal laws;

(b) Is not in compliance with these rules;

(c) Would result in an unreasonable interference with the public trust values of commerce, navigation, fishing and recreation;

(d) Would have unacceptable impacts on public health, safety or welfare, or natural resource values; and

(e) Is prohibited by a State Land Board or Division adopted area closure, use restriction, or waterway management plan.

(f) Is inconsistent with any endangered species management plan adopted by the Division under the Oregon Endangered Species Act (ORS 496.171 - 496.192).

(7) The Division shall administer these rules to ensure to the extent possible that:

(a) The people of Oregon receive fair compensation for the use of state-owned submerged and/or submersible land reflective of local market conditions;

(b) Persons applying for, and holding an authorization to use state-owned submerged and/or submersible land receive consistent, predictable, and fair treatment; and

(c) Public trust values (commerce, navigation, fishing, and recreation) are supported, protected, and enhanced.

(8) The Division may, at its discretion, deny a lease application or lease renewal to use state-owned submerged and/or submersible land if the applicant's financial status and/or past business/management practices indicate that s/he may not:

(a) Be able to fully meet the terms and conditions of a lease or other form of authorization offered by the Division; or

(b) Use the land applied for in a way that meets the provisions of OAR 141-082-0010(2) and (3).

(9) No person or lessee shall request from any government agency a change in the zoning or approved uses of a parcel of state-owned submerged and/or submersible land without first applying to, and receiving written approval from the Division to request such a change.

Stat. Auth.: ORS 196.800 - ORS 196.990, ORS 273.045 & ORS 274.005 - ORS 274.994
Stats. Implemented: ORS 274
Hist.: LB 24(Temp), f. & ef. 7-17-75 thru 11-13-75; LB 33, f. & ef. 11-20-75; LB 4-1984, f. & ef. 9-11-84; LB 1-1996, f. & cert. ef. 1-12-96; DSL 1-1998, f. & cert. ef. 1-6-98; DSL 2-1998, f. & cert. ef. 4-22-98; DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0020

Definitions

(1) "Actual Annual Slip" or "Boat Rental Income" means the gross revenue received by a lessee during the prior year from the rental or subleasing of slips, boat rental, or similar activities within the authorized area.

(2) "Adjacent Riparian Owner" or "Riparian Owner" means a person holding recorded title to property that fronts or abuts state-owned submerged and/or submersible land.

(3) "Adjacent Riparian Tax Lot" means the non-Division-owned portion of a tax lot that fronts or abuts state-owned submerged and/or submersible land.

(4) "Annual Lease Rental Payment" means the amount of money a lessee pays each year to the Division of State Lands for the use of a specific area of state-owned submerged and/or submersible land for an authorized use under specific terms and conditions.

(5) "Applicant" is any person applying for authorization to use state-owned submerged and/or submersible land.

(6) "Appraised Value" means an estimate of current fair market value of property (expressed in dollars per square foot) derived by disinterested persons of suitable qualifications, for example, a licensed independent appraiser.

(7) "Aquaculture" means the culture and/or farming of food fish, shellfish, and other aquatic plants and animals in fresh or salt-water areas. Aquaculture practices include the hatching, seeding or planting, cultivating, feeding, raising, and/or harvesting of planted or natural crops so as to maintain an optimum yield, and the processing of aquatic plants or animals.

(8) "Assessed Value" means the current value in dollars per square foot assigned to the land within the adjacent riparian tax lot or comparable tax lot by the county tax assessor.

(9) "Assignment" means a transfer by the lessee of the rights of use and occupancy of the leasehold to another legal entity, including for benefit of creditors (for example, mortgages).

(10) "Authorization" means a lease, registration, temporary use permit, or public facility license issued to an applicant by the Division conveying a right to limited use of state-owned submerged and/or submersible land for a specific and defined purpose for a fixed period of time. All uses of state-owned land other than transient uses must be authorized by the Division through a written authorization.

(11) "Authorized Area" is the area of state-owned submerged and/or submersible land which the Division allows a structure to occupy or person to use through a lease, registration, temporary permit or public use facility license. The authorized area shall encompass, at a minimum, all structures and directly associated uses of the water surface area.

(12) "Boat House" means a covered or enclosed structure used exclusively to store, shelter, or protect a boat or boats and boating equipment. A structure used in part, or only occasionally for any purpose other than to shelter or protect a boat or boats and boating equipment shall be considered a combination structure.

(13) "Combination Structure or "Combo" means a structure which is used for more than one (1) exclusive use, for example, the combination of a boathouse with a floating home, shelter, dwelling, recreation room, or any other structure or use.

(14) "Commercial Use" means an activity conducted on, within, or over state-owned submerged and/or submersible land for business purposes, including but not limited to: offices, stores, hotels, banks, marinas, restaurants, or retail service outlets.

(15) "Comparable Annual Slip Rental" means the estimated annual slip rental income from a non-commercial marina or moorage based upon the market value of the slips and taking into account location and condition of the facility and the actual or estimated occupancy.

(16) "Director" means the Director of the Division of State Lands or designee.

(17) "Division" means the Division of State Lands.

(18) "Dock/Float" means an individual secured and stationary or floating structure (other than a mooring buoy) used exclusively for mooring boats and for similar uses.

(19) "Dolphin" is a cluster of piles or piling which is bound together.

(20) "Dwelling" means a structure designed or occupied as the permanent or temporary living quarters of one or more households which is usually equipped with cooking, bathing, toilet and heating facilities.

(21) "Fish Processing Facility" means a stationary structure where the cleaning, freezing, canning, preserving and/or storing of aquatic animal life are conducted.

(22) "Flat Rate Method" means a manner of calculating annual lease rental payment based on a fixed dollar amount per square foot of leasehold area that varies by use classification.

(23) "Floating Home" means a moored floating structure that is secured and stationary and is used primarily as a dwelling and not as a boat or floating recreational cabin.

(24) "Floating Recreational Cabin" is a moored floating structure, accessible only by boat, used wholly or in part as a dwelling, not physically connected to any upland utility services (for example, water, sewer, or electricity), and used only periodically or seasonally.

(25) "Gangway" means a walkway or access ramp which connects, and is used exclusively for the purpose of traversing from the upland to a dock/float, marina, floating home, boat house, or other structure

(26) "Goods and Merchandise" means products and raw materials transported in pursuit of trade, business, and/or economic gain. Goods and merchandise does not include materials used by a vessel for its maintenance, alteration, or operation.

(27) "Government Functions" are activities federal, state or local government agencies are assigned to perform to protect the health and safety of the public they serve. A ship, boat or vessel exclusively engaged in helping to maintain public health and safety is said to be performing a government function. Examples of ships, boats or vessels exclusively engaged in the performance of a government function on Oregon's waterways are those of the United States Navy, United States Coast Guard, United States Army Corps of Engineers, and various fire, police and sheriffs departments.

(28) "Historical Vessel" means a vessel listed or eligible for listing on the National Register of Historic Places.

(29) "Industrial Use" means an activity conducted on, within, or over state-owned submerged and/or submersible land for business purposes that involves the assembly, processing, or manufacture of products from raw materials or fabricated parts, or that renders services such as, but not limited to: storage warehouses, factories, or shipyards.

(30) "Lease" for the purposes of these rules, is a valid, enforceable contract executed by the Division and signed by the lessee allowing the use of a specific area of state-owned submerged and/or submersible land for a specific use under the terms and conditions of the lease and these rules.

(31) "Lease Anniversary Date" means the month and date the lease was initially entered into and on which, in subsequent years, the annual lease rental payment is due.

(32) "Leasehold" means the same as "Authorized Area."

(33) "Line of Ordinary High Water" means the line on the bank or shore to which the high water ordinarily rises annually in season.

(34) "Limited Service Restaurant" means a restaurant serving only pre-wrapped sandwiches, or a single dish or food product, and nonperishable beverages as defined in ORS 624.010(4).

(35) "Line of Ordinary Low Water" means the line on the bank or shore to which the low water ordinarily recedes annually in season.

(36) "Log Boom Area" means a water surface area bounded by floating, connected logs or other devices, used for confining loose logs, grading and sorting logs, making log rafts, or to feed whole or partially processed wood products to a mill.

(37) "Log Raft" means a group of loose or bundled logs which can be stored or moved on water.

(38) "Log Raft Storage Area" means the unbounded water surface area used for mooring and storing log rafts, usually marked by piles and dolphins to which the rafts are fastened.

(39) "Marina" means a small harbor, boat basin, or moorage facility providing boat berthing, docking and mooring, and incidental services for recreational, commercial and/or charter fishing, or tour boats. Incidental services include, but are not limited to the following: restrooms, showers, minor boat and motor repair; mooring buoys; refueling facilities; boat hoists/lifts; boat launch ramp; small office for marina management; club house and/or meeting room; vending machines; small retail area for marine, fishing and other outdoor supplies and equipment; ice, packaged beverages and foods; limited service restaurants; and temporary restaurants.

(40) "Marine Industrial/Marine Service" means structures or uses which are commercial or industrial in nature and which need to be located in or adjacent to water areas because the use requires water access. Such uses include, but are not limited to: ship, tug barge and workboat moorage and storage; vessel repair facilities; aquaculture facilities; and fish processing facilities.

(41) "Mooring Buoy" means a floating device anchored to the bed of a waterway to which a boat is fastened through the use of lines or ropes for the purpose of maintaining the boat in a stationary position in the water.

(42) "Multi-Family Dock" means a non-commercial dock, maintained and owned in common by several families, and situated nearby their residences, and where no dues or fees are required to be paid to use the dock. A multi-family dock is not an ownership oriented facility.

(43) "Navigation Aids" are structures or devices such as buoys, channel markers, beacons, approach and landing lights, and radio navigation and landing aids, etc., placed in or along a waterway, by or with the consent of appropriate public agencies, to aid persons engaged in navigation of a waterway or aviation.

(44) "Non-Marine Uses" means structures or uses, typically commercial or residential, which do not need to be located in or adjacent to water areas. Such structures and uses include, but are not limited to: apartments, hotels, motels, residences, restaurants, offices, retail stores, manufacturing plants, and warehouses.

(45) "Non-Commercial" means a use which does not result in and/or is not associated with any monetary consideration or gain. For example, a use which includes the renting, leasing, or sale of space would not qualify as "non-commercial."

(46) "Ownership-Oriented Facility" means non-commercial facilities where the access and privilege to use is limited to a membership group of persons who pay dues or fees of some type to maintain membership and to operate the facility.

(47) "Person" is an individual at least eighteen (18) years old, a political subdivision or public agency, or any corporation, association, firm, partnership, joint stock company, or quasi-public corporation registered to do business in the State of Oregon.

(48) "Pile" or "Piling" is a wood, steel, or concrete beam driven or jetted into the bed or bank of a waterway to secure a floating structure, log raft, or boat.

(49) "Preference Right" means a riparian property owner's statutory privilege, as found in ORS 274.040(1), to obtain a lease without advertisement or competitive bid for the state-owned submerged and/or submersible land that fronts and abuts the riparian owner's property. The Division will not recognize a claim of lease preference right from a non-riparian owner. A person claiming the right of occupancy to submerged and submersible land under a conveyance recorded before January 1, 1981, shall have a preference right to the requested lease area.

(50) "Preference Right Holder" means the person holding the preference right to lease as defined in these rules and ORS 274.040(1).

(51) "Protective Boom" or "Shear Boom" refers to logs or similar floating devices attached to each other to protect a structure or bank from floating debris, erosion or wave action.

(52) "Public Agency" means an agency of the Federal Government, the State of Oregon, and every political subdivision thereof.

(53) "Public Facility License" is a form of authorization issued by the Division to public agency owned, operated, and maintained transient use docks/floats, boat ramps, boat landings and/or viewing structures where no or minimal entry or use fees are charged; and navigation aids.

(54) "Public Trust Use(s)" means activities that support, protect, and enhance public trust values (commerce, navigation, fishing and recreation) including but not limited to short term moorage, camping, bank fishing, picnicking, and boating.

(55) "Redetermination" or "Redetermine" means, for the purposes of this rule, a revision, conducted in accordance with the administrative rulemaking process (ORS 183), of lease rental methods, formulas, classification or other factors as specified in OAR 141-082-0100.

(56) "Registration" is a form of authorization issued by the Division allowing a qualifying structure or use to occupy state-owned submerged and/or submersible land.

(57) "Residential Use" means an activity conducted on, within, or over state-owned submerged and/or submersible land devoted to, or available for single or multiple dwelling units, single-family homes, floating homes, apartments or condominiums.

(58) "Restaurant" means any establishment where food or drink is prepared for consumption by the public or any establishment where the public obtains food or drink so prepared in form or quantity consumable then and there, whether or not it is consumed within the confines of the premises where prepared, and also includes establishments that prepare food or drink in consumable form for service outside the premises where prepared, but does not include railroad dining cars, bed and breakfast facilities or temporary restaurants as defined in ORS 624.010(5).

(59) "Riparian Land Owner" or "Riparian Owner" is a person who owns riparian property.

(60) "Riparian Land Value Method" means a manner of calculating the annual lease rental payment by multiplying the assessed value times five (5) percent times the area of the leasehold for each use classification.

(61) "Riparian Property" means a parcel of land that fronts or abuts on state-owned submerged and/or submersible land.

(62) "State Land Board" means the constitutionally created body consisting of the Governor, Secretary of State, and State Treasurer that is responsible for managing the assets of the Common School Fund as well as for additional functions placed under its jurisdiction by law. The Division of State Lands (Division) is the administrative arm to the State Land Board.

(63) "Structure" means anything placed, constructed, or erected over state-owned submerged and/or submersible land that is associated with a use that requires a lease, registration, temporary use permit, or public facility license.

(64) "Sublease" means a subordinate lease between the lessee and a third party of all or part of the leasehold, where the lessee remains contractually and primarily liable under the lease with the Division. A subordinate lease of part of the entire premises for a term less than one (1) year for the use authorized under the lease shall not require prior approval of the Division.

(65) "Submerged Land" means land lying below the line of ordinary low water of all title navigable and tidally influenced water within the boundaries of the State of Oregon.

(66) "Submersible Land" means land lying between the line of ordinary high water and the line of ordinary low water of all title navigable and tidally influenced water within the boundaries of the State of Oregon.

(67) "Temporary Use Permit" is an authorization issued by the Division to a person allowing the short term use, usually less than one (1) year, of a specific area of state-owned submerged and/or submersible land for a specific use under specific terms and conditions.

(68) "Temporary Restaurant" means the same as ORS 624.010(6), that is, any establishment operating temporarily in connection with any fair, carnival, circus or similar public gathering or entertainment, food product promotion or any other event where food is prepared or served for consumption by the public. A temporary restaurant does not include:

(a) An establishment where food is prepared and served by a fraternal, social or religious organization only to its own members and guests.

(b) An approved school lunchroom where food is prepared and served for school and community activities, where the preparation and services are under the direction of the school lunchroom supervisor.

(c) A food product promotion where only samples of a food or foods are offered to demonstrate the characteristics of the food product. For the purposes of this paragraph, a sample shall not include a meal, an individual hot dish or a whole sandwich.

(d) A private residence, or part thereof, including the grounds, areas and facilities held out for the use of the occupants generally, for which a special retail beer or special retail wine license is issued under ORS 471.311 for a period not exceeding one day.

(69) "Transient Use" means any public trust use of state-owned submerged and/or submersible land which is of a short or intermittent duration, and not more than fourteen (14) consecutive days in any one (1) location or area.

(70) "Use" means an activity with or without associated structures on state-owned submerged and/or submersible land that requires a lease, temporary use permit, public facility license or registration under these rules.

(71) "Use Classification" means the specific category of similar uses and structures subject to authorization described in OAR 141-082-0100.

(72) "Water Sport Structures" means water ski buoys, jumps and ramps, kayak race gates, and other such devices used in association with a water recreational sport. Such devices are typically temporary in nature, and not permanently attached to a piling, dolphin, or other fixed object.

(73) "Wharf" or "Wharves" as used in ORS 780.040 and these rules mean a structure placed on state-owned submerged and/or submersible land that is actively and exclusively used to accommodate ships, boats, or vessels engaged exclusively in the receipt and discharge of goods or merchandise, or in the performance of active government functions on the waterway.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: LB 24(Temp), f. & ef. 7-17-75 - 11-13-75; LB 33, f. & ef. 11-20-75; LB 4-1984, f. & ef. 9-11-84; DSL 1-1998, f. & cert. ef. 1-6-98; DSL 2-1998, f. & cert. ef. 4-22-98; DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0030

Types of Uses and Required Authorizations

(1) All uses of, and structures occupying state-owned submerged and/or submersible land require prior written approval of the Division by a lease, temporary use permit, public facility license, or registration pursuant to these rules. Uses and structures requiring leases or temporary use permits include, but are not limited to:

(a) Aquaculture facilities;

(b) Marine industrial/marine service uses;

(c) Floating homes and floating home moorages;

(d) Fish processing facilities;

(e) Log raft, log storage or log booming areas;

(f) Historical vessel moorages;

(g) Combination structures;

(h) Commercial and non-commercial marinas including owner-oriented facilities;

(i) Multi-family docks not qualifying for registration;

(j) Non-marine uses (for example, restaurants, warehouses, offices, motels, etc.);

(k) Individual non-commercial docks/floats, boathouses, and floating recreational cabins not qualifying for registration or public use facility license;

(l) Wharfs (when outside of cities or port districts);

(m) Log salvage;

(n) Commercial, industrial or residential uses; and

(o) Other similar non-transient uses and structures not exempted by statute or these administrative rules, and determined by the Director to be subject to lease or temporary use permit.

(2) Uses and structures that are eligible for registration are:

(a) Non-commercial structures including docks/floats, multi-family docks, and/or boat houses of two-thousand five hundred (2,500) square feet or less excluding associated gangways, pilings, dolphins, mooring buoys, and protective booms;

(b) Floating recreational cabins of one-thousand five hundred (1,500) square feet or less excluding associated, pilings, dolphins, mooring buoys, and protective booms;

(c) Water sport structures (pursuant to OAR 141-082-0140 through 141-082-0200);

(d) Wharfs used to accommodate any ships, boats or vessels engaged exclusively in the receipt and discharge of goods or merchandise or in the performance of governmental functions upon the waterway (pursuant to the exemption provided in ORS 780.040); and

(e) Other similar structures determined by the Director to be eligible for registration.

(3) Uses and structures that are eligible for public facility licenses are:

(a) Boat ramps/landings;

(b) Viewing structures;

(c) Fishing piers;

(d) Recreational boating "short-term stay" docks/floats;

(e) Structures, piers, docks/floats owned, operated by, or under contract to a government agency as long as they are in active service and used exclusively by the government agency to perform the function of that agency; and

(f) Navigation aids placed by public agencies including approach and landing lights, and radio navigation and landing aids for aviation.

(4) Uses and structures that are exempt from lease are:

(a) Wharves (except as noted in OAR 141-082-0030(1) and (2));

(b) Transient uses;

(c) Uses/structures eligible for registration or public facility license.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: LB 24(Temp), f. & ef. 7-17-75 - 11-13-75; LB 33, f. & ef. 11-20-75; LB 39(Temp), f. 11-5-76, ef. 11-10-76 - 3-9-77; LB 43, f. & ef. 4-20-77; LB 4-1984, f. & ef. 9-11-84; DSL 1-1998, f. & cert. ef. 1-6-98; DSL 2-1998, f. & cert. ef. 4-22-98; DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0040

Lease, Public Facility License or Temporary Use Permit Application Requirements

(1) If a use of, or structure upon state-owned submerged and/or submersible land requires a lease, public facility license, or temporary use permit, no person may begin to use such land, or erect such structure(s) without first having applied for, and been granted either a lease, public facility license, or temporary use permit pursuant to these rules.

(2) Persons needing to obtain a lease, public facility license, or temporary use permit for a structure on, or use of state-owned submerged and/or submersible land must apply to the Division on a form provided by the Division.

(3) All applications for a lease or public facility license must be fully completed and accompanied by a non-refundable fee payable to the Division in the amount of seven hundred and fifty dollars ($750) for a lease, and two hundred and fifty dollars ($250) for a public facility license. There is no application fee for a temporary use permit. The Division shall review applications in a timely manner.

(4) To be accepted by the Division for consideration, an application for a lease, public facility license, or temporary use permit shall be:

(a) Fully completed; and

(b) For an area initially determined by the Division to be available for use. Applications which fail to meet these requirements shall be returned to the applicant with an explanation of the reason(s) for rejection.

(5) If a rejected application is resubmitted within one hundred and twenty (120) calendar days from the date the Division returned the application, no additional application fee will be assessed.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 2-1998, f. & cert. ef. 4-22-98; DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0046

Lease Application

(1) Any person engaged in an other than transient use of state-owned submerged and/or submersible land subject to these rules must obtain a lease, public facility license, temporary use permit, or registration from the Division.

(2) Each complete application for lease shall be submitted on a form provided by the Division and contain the following information:

(a) Name, address, and telephone number of the applicant, each fronting and abutting landowner, and any and all persons having a legal interest in the lease;

(b) Name of waterway;

(c) County and city;

(d) Township, Range, Section, and Tax Lot number(s) of lease area and adjacent uplands; and

(e) A description of the purpose for which the lease area will be used.

(3) Each complete application shall include:

(a) A location map showing the proposed lease area relative to its surroundings.

Note: Aerial photographs, U.S.G.S. Quadrangle maps, and Coast Survey Charts are all suitable for this purpose.

(b) A map from the County Assessor that shows the location of the proposed lease area.

(c) A description of the area to be leased sufficient to permit the Division to identify its boundaries, corners, and acreage with reasonable accuracy and to preclude the granting of conflicting leases.

(d) A plot plan (suggested scale 1" = 100') showing the lease area, proposed or existing facilities, the adjacent lands and property boundaries, the location of the Ordinary High and Ordinary Low Water lines, and the direction of water flow.

(e) A non-refundable seven hundred and fifty dollar ($750) application fee payable by check to the Division of State Lands.

(f) Evidence satisfactory to the Division that the proposed use is in conformance with the local comprehensive land use plan and zoning ordinance.

(4) The Division may request additional information regarding the applicant's financial status and business/management practices prior to authorizing a lease.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0049

Lease, Public Facility License and Temporary Use Permit Application Review Process

(1) The appropriate city or county planning department, pertinent state and federal agencies, and all lessees and riparian property owners (as available from the local county assessor's office records) within two hundred (200) feet of the proposed or existing use shall be notified by the Division of the opportunity to review and comment on the accepted applications.

(2) Based on the evaluation of the application and the comments received, the Division shall:

(a) Approve the application and continue to process the lease, public facility license, or temporary use permit;

(b) Require that the applicant modify and resubmit the application; or

(c) Deny the application.

(3) If the Division determines that the proposed or existing use meets the policies set forth in these rules in OAR 141-082-0010, the Division shall determine the area needed to fully encompass the perimeter of the use as well as any additional water surface area needed to support the use. The Division shall also determine the method to describe the boundary of the authorized area.

(4) In the event the Division cannot readily determine the authorized area description from the applicant's information or, if in the judgment of the Division, a dispute may arise concerning the description, the Division may require the applicant to have a survey of the requested area conducted by a licensed professional engineer or surveyor. The Division shall provide survey instructions as well as specify the information required in the survey and accompanying notes. Generally the applicant will be responsible for any costs of the survey.

(5) If more than one (1) application for a specific area is received by the Division, the Division shall determine which proposed use best fulfills the policies specified in OAR 141-082-0010, and accept and proceed with that application and deny the others.

(6) The Division shall offer a preference right to lease to the eligible party as defined in OAR 141-082-0020(49) and (50), hereafter referred to as the preference right holder. When a lease application has been approved, the Division shall:

(a) If the proposed lease area consists of parcels having different owners, subdivide the requested lease area into smaller parcels by extending lines perpendicular to the thread of the stream from the boundaries of, or within the boundaries of adjacent riparian tax lot so that there is a separate lease parcel for each parcel of property that fronts and abuts the lease area.

(b) If the proposed lease area consists of a single parcel, or two or more contiguous parcels owned by the same person, the Division will extend the boundaries of the single parcel or combined group of single-ownership parcels perpendicular to the thread of the stream as in OAR 141-082-0049(6)(a) above.

(c) In accordance with the proposed use(s), calculate in a manner consistent with OAR 141-082-0100 a minimum annual lease rental payment for each lease parcel; and

(d) Notify each preference right holder in writing that a lease application has been approved by the Division, and provide thirty (30) calendar days from the date that the letter is postmarked for the preference right holder to exercise the preference right to take the lease at the established minimum annual lease rental payment.

(7) The Division shall consider that the preference right holder has accepted the offer of a preference right to lease by executing the lease form and all other documents and remitting the required minimum annual lease rental payment within the required thirty (30) calendar day period.

(8) If the preference right holder does not exercise the preference right to take a lease applied for by another person, the Division shall prepare and publish an advertisement for bids pursuant to the requirements of ORS 274.040. The highest qualified bidder shall be awarded the lease. The minimum bid amount shall be set by the Division.

(9) The fee for structures and uses authorized under a temporary use permit shall be determined by the Director, utilizing these rules as guidance, on a case-by-case basis, and shall not be less than one hundred dollars ($100).

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0060

General Lease Conditions and Form

(1) The lease form contained in Exhibit A shall be the principal lease form used by the Division to authorize the use of state-owned submerged and/or submersible land. However, the Division in its good faith discretion may determine that the size and/or nature of a proposed use, or the risks associated therewith, make it advisable to require a lease with terms other than those contained in Exhibit A. In such event, the Division may condition acceptance of the proposed use upon acceptance of a lease form proposed by the Division and, if requested by the Division or otherwise required by law, approved by the Department of Justice.

(2) The maximum lease term for state-owned submerged and/or submersible land shall be fifteen (15) years. Renewal provisions shall allow for additional periods of up to the maximum of fifteen (15) years after the original and each renewal lease term as specified in OAR 141-082-0070. The length of a lease offered by the Division shall depend on:

(a) Whether the proposed use is reasonably expected to exist for the time period requested by the applicant; and

(b) The policies contained in these rules.

(3) State-owned submerged and/or submersible land, regardless of whether or not it is included in authorized areas, shall remain available and open to the public for commerce, navigation, fishing, and recreation unless restricted or closed to public entry by the State Land Board or Division. The lessee may request the Division to close the authorized area to public entry or restrict recreational use by the public on all or portions of the authorized area to protect persons or property from harm arising from, or in connection with the authorized use or activity, or for any other purpose consistent with the policies of OAR 141-082-0010.

(4) The lessee may restrict public use of lessee-owned property or structures authorized under the lease.

(5) The Division or its authorized representative(s) shall have the right to enter into and upon the authorized area at any time for the purposes of inspection or management.

(6) The lessee shall dispose of all waste in a proper manner and shall not permit debris, garbage or other refuse to either accumulate within the authorized area or be discharged into the waterway. A lessee's failure to comply with this provision shall be considered a material default since a violation of this obligation may harm the public trust values in the waterway. As such, the Division shall have both the right to terminate the lease upon a substantial or repeated violation of this obligation, as well as the right to remove the debris and collect the cost of such removal from the lessee.

(7) The lessee shall not cut, destroy or remove, or permit to be cut, destroyed or removed any vegetation (except for noxious weeds) that may be upon the authorized area except with the written permission of the Division. The lessee shall promptly report to the Division the cutting or removal of vegetation by other persons.

(8) The lessee shall conduct all operations within the authorized area in a manner which conserves fish and wildlife habitat, protects water quality, and does not contribute to soil erosion or growth of noxious weeds.

(9) The lessee shall maintain all buildings, docks, pilings, floats, gangways, similar structures, and other improvements located within the authorized area in a good state of repair as determined by the Division in consultation with other government agencies such as the local building inspection authority or fire service agency.

(10) The Division may require the lessee to obtain a surety bond to ensure that the lessee will perform in accordance with all terms and conditions of the lease. The surety bond amount shall be determined by the Division and shall be reasonable and within generally accepted business practices. A cash deposit or certificate of deposit in an amount equal to the amount required for a surety bond and which names the State of Oregon as co-owner may be substituted in lieu of a bond.

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 2-1998, f. & cert. ef. 4-22-98; DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0070

Lease Renewal

(1) A lessee shall have an option to renew a lease entered into after the effective date of this rule for additional terms but not more than fifteen (15) years, provided that the lessee has submitted a completed lease renewal application form to the Division not less than one hundred eighty (180) calendar days prior to the lease expiration date. Upon receipt of such application, the lease shall be renewed by the Division unless:

(a) The Division determines, in its sole discretion, that the lessee has not complied with the terms of this lease, the applicable statutes, or Oregon Administrative Rules; or

(b) The lessee is no longer the preference right holder; or

(c) The Division determines that the renewal of this lease for all or portions of the authorized area would be contrary to local, state, or federal law, or would be inconsistent with the policies set forth in OAR 141-082-0010. In the event that the Division determines that the lessee is not entitled to renew the lease pursuant to the standards described above, the Division shall give the lessee two (2) years written notice that the lease will be allowed to expire. If less than two (2) years remain in the lease term at the time the written notice is given, the Division shall allow the lessee time beyond the lease expiration date to complete the two (2) year notice period to allow the lessee sufficient time to vacate the authorized area and relocate any sublessees in an orderly fashion. Temporary use permits may also be issued in the event that a final decision with regard to a lease renewal has not occurred by the expiration of the lease term. The Division shall report to the State Land Board for review all leases that the Division proposes not to renew pursuant to this subsection (OAR 141-082-0070(1)).

(2) All lease renewal applications shall be on a form provided by the Division. Completed applications must be received by the Division not less than one hundred eighty (180) calendar days prior to the expiration of the lease term.

(3) If an application to renew a lease is not timely received by the Division, the Division at its option may elect to either let the lease expire without renewal, or assess a late fee of two hundred and fifty dollars ($250) payable to the Division.

(4) An application for renewal shall be accompanied by a non-refundable fee in the amount of seven hundred and fifty dollars ($750) payable to the Division. Any late fees, as required under OAR 141-082-0070(3) shall also be included with the application fee for lease renewal.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 2-1998, f. & cert. ef. 4-22-98; DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0080

Lease Modifications for Size and Use

(1) Lessees shall notify the Division in writing using a form provided by the Division prior to expanding or reducing the size, use, or internal arrangement of use within their authorized area. No such changes or modifications shall be made without prior written authorization from the Division.

(2) The Division may amend a lease to reduce the authorized area as requested if the portion of the lease area is not in use, and does not contain any leasable structures.

(3) Requests to change an authorized use, or increase an authorized area shall be processed and reviewed in the same manner as a new lease application as specified in OAR 141-082-0040 and 141-082-0049 of these rules.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0090

Subleasing and Assignment of Leases

(1) Any lessee desiring to sublease in a manner not permitted outright by the lease or these rules, or assign a lease shall:

(a) Apply to the Division on a form provided by the Division; and

(b) Submit a non-refundable application fee of seven hundred and fifty dollars ($750) payable to the Division.

(2) The Division shall make a good faith effort to complete its review of such applications within thirty (30) calendar days of receipt. If the application is incomplete, or if the Division requests additional information concerning the proposed assignment or sublease, the time period for reviewing applications shall be extended.

(3) Except as authorized in the lease or these rules, in no event shall the lessee assign or sublease any portion of the authorized area prior to receipt of written approval from the Division. Violation of this provision may be grounds for termination of the lease.

(4) Sublessees and assignees shall meet all applicable requirements set forth in these rules and the lease.

(5) Subleases permitted outright, that is, without prior approval of the Division, include only the following:

(a) Subleases of less than the entire leasehold area entered into (for example, rental of boat slips) in the ordinary course of business as authorized by the lease; or

(b) Subleases of the entire leasehold area for a term that is less than one (1) year and for a use authorized in the lease.

(6) Upon the sale of the lessee's interest in the lease, the lessee (seller) shall submit an application to the Division requesting an assignment of the lease to the purchaser.

(7) The transfer of ownership of the lease caused by the death of the lessee shall be considered an assignment requiring the Division's approval. A transfer of ownership to a spouse or immediate family member is an assignment that does not require the Division's prior approval.

(8) The lessee shall not grant a mortgage or security interest in the lease without prior written consent of the Division which shall not be unreasonably withheld. Any subsequent assignment by the creditor shall require the prior written approval of the Division.

(9) The Division may request additional information on the assignee's financial status and/or past business/management practices. The Division may, at its discretion, deny the assignment request if the assignee's financial status and/or past business/management practices indicate that s/he may not:

(a) Be able to fully meet the terms and conditions of a lease or other form of authorization offered by the Division; or

(b) Use the land applied for in a way that meets the provisions of OAR 141-082-0010(2) and (3).

(10) The Division shall require that the assignee, if approved by the Division, complete and submit to the Division a new lease application at the time of the assignment.

Stat. Auth.: ORS 273.045 & ORS 274.005 - ORS 274.043
Stats. Implemented: ORS 274
Hist.: DSL 18-1999, f. & cert. ef. 7-2-99; DSL 4-2002, f. 6-14-02, cert. ef. 7-1-02

141-082-0100

Lease Rental Formulas, Methods and Annual Lease Rental Payment Adjustments

(1) The base minimum annual lease rental payment for any lease shall be the greater of:

(a) $0.0056 per square foot times the lease area or two hundred and seventy five dollars ($275);

(b) Subject to the base minimum annual lease rental payment established in OAR 141-082-0100(1), lease applicants (including lease renewal applicants) may select the method of annual lease rental payment calculation for their authorized use classification as described in OAR 141-082-0100(4)(a) through (h) below that results in the lowest annual lease rental payment, except for leases awarded through competitive bidding for which the annual lease rental payment shall be based on the bid award. The lessee or lease applicant shall provide all pertinent information to the Division to assist in calculating the annual lease rental payment. The method of annual lease rental payment calculation shall remain in effect for the term of the lease, unless changed pursuant to a redetermination made through the administrative rulemaking process (ORS 183) and approved by the State Land Board.

(2) In the event the lessee and the Division cannot agree on the method of calculating the annual lease rental payment or any aspect of the method, the annual lease rental payment shall be determined by the Division using the flat rate method until such time as the dispute is resolved and implemented at the next lease anniversary date.

(3) The annual lease rental payment for individual non-commercial docks, boat houses, and floating recreational cabins not eligible for registration and that are not contained within marinas or moorages shall be calculated based on the area encompassed by the perimeter of the structures, and shall exclude gangways, protective booms, pilings, and dolphins from the annual lease rent payment calculation.

(4) The following eight (8) use classifications and related lease rental formulas (OAR 141-082-0100(4)(a) through (h)) shall be used to establish annual lease rental payments or minimum bid, whichever is applicable, subject to the base minimum annual lease rental payment established in OAR 141-082-0100(1). For the riparian land value method described below, utility, railroad or publicly-owned land shall not be used for establishing the AV unless the assessed value is readily available and reflective of comparable similarly situated tax lots. If not, the AV of privately owned comparable tax lots shall be substituted. In cases where the adjacent riparian tax lot is less than one hundred (100) feet deep, the Division will assume the adjacent riparian tax lot has a depth of one hundred (100) feet and apportion the AV based on this derived area. (continued)