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DEPARTMENT OF STATE LANDS

 

DIVISION 82

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

141-082-0250

Purpose and Applicability

(1) These rules:

(a) Govern the granting and renewal of leases, public facility licenses and registrations (hereafter collectively referred to as waterway use authorizations) for a wide variety of commercial, non-commercial, and public uses in, on, under or over state-owned submerged and/or submersible land.

(b) Do not apply to the granting of:

(A) Easements on state-owned submerged and/or submersible land governed by division 122 of the Department’s administrative rules;

(B) Authorizations for hydroelectric projects on state-owned Trust and Non-Trust Land governed by division 87 of the Department’s administrative rules;

(C) Authorizations for the removal or use of rock, sand, gravel and silt from state-owned submerged and/or submersible land governed by division 14 of the Department’s administrative rules;

(D) Authorizations for special uses of state-owned submerged and/or submersible land such as for short term access; the conduct of scientific experiments and the removal of sunken logs governed by division 125 of the Department’s administrative rules; and

(E) Authorizations for ocean energy conversion devices and fiber optic and other cables in, on or over the Territorial Sea governed by divisions 140 and 83 of the Department’s administrative rules.

(F) Authorizations for uses and structures specifically governed by any other chapter of the Department’s administrative rules

(c) Provide that all uses of, and structures occupying state-owned submerged and/or submersible land not otherwise exempt from authorization under these rules, require prior written authorization from the Department pursuant to these rules.

(2) The Director may determine other uses and structures similar to those specified in OAR 141-082-0265 that are subject to a specific authorization under these rules.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0255

Definitions

(1) “Actual Annual Gross Income” means the gross revenue received by a lessee during the prior lease year from the authorized use(s) of state-owned submerged and/or submersible land, including but not limited to the rental of boat slips, boat rental, launch fees or from associated incidental services 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 Property” or “Adjacent Riparian Tax Lot” means the non-state-owned portion of a tax lot that fronts or abuts state-owned submerged and/or submersible land.

(4) “Annual Lease Compensation” means the amount of compensation a lessee pays to the Department for the use of an authorized area.

(5) “Applicant” is any person applying for a waterway use authorization.

(6) “Appraised Value” means an estimate of current fair market value of a parcel (expressed in dollars per square foot) derived by a state certified appraiser or a salaried public employee of the federal government, the State of Oregon, or a political subdivision of the federal government or the State of Oregon while engaged in the performance of the duties of the employee as defined in ORS 674.110(2)(h).

(7) “Aquaculture” means the culture, farming, or harvesting of food fish, shellfish, and other plants (exclusive of kelp which is governed by Division 125 of the Department’s administrative rules) and animals in fresh or salt-water areas. Aquaculture practices include, but are not limited to, the hatching, seeding or planting, cultivating, feeding, raising, and harvesting of planted or natural species so as to maintain an optimum yield, and the processing of 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” or “Assign” means a transfer by the lessee with the Department’s approval of the rights of use and occupancy of the leasehold to another person.

(10) “Authorization” or “Waterway Use Authorization” means a lease, registration or public facility license granted by the Department to an applicant conveying a right to limited use of a specific area of state-owned submerged and/or submersible land for a specific purpose for a fixed period of time.

(11) “Authorized Area” is the area of state-owned submerged and/or submersible land defined in the waterway use authorization for which a use is authorized.

(12) “Boat House" means a covered or enclosed structure used to store, shelter, or protect a boat or boats and boating equipment. A structure containing a dwelling does not qualify as a boat house. A boathouse may include an unenclosed recreation area, or a roof that is:

(a) Used as a viewing platform, for sunbathing, or for other related short-term recreational uses;

(b) Surrounded by a railing or other safety device;

(c) Accessible from the lower deck by a permanent or temporary stairway; or

(d) Used to gain access to a waterslide.

(13) “Boat Lift” is a device that is used to lift a boat from the water for out-of-water moorage or storage; movement to another location; or to enable maintenance to be conducted on the watercraft.

(14) “Boat Ramp” is a specific area that has been improved through the placement of a concrete pad or strips, steel mats, rails, gravel or other similar durable material that is used for the launching of boats into a waterway.

(15) “Commercial Marina” is a marina, the operation of which results in, or is associated with any monetary consideration or gain.

(16) “Commercial Use” means an activity conducted on, within, or over state-owned submerged and/or submersible land that results in, or is associated with any monetary consideration or gain, including but not limited to: offices, stores, hotels, banks, marinas, restaurants, or retail service outlets.

(17) “Compensation” or “Compensatory Payment” is the amount of money paid by an applicant for, or holder of an authorization to the Department for the use of Department-managed land.

(18) “Department” means the Department of State Lands.

(19) “Diking District” means a public body organized under the provisions of ORS Chapter 551 for the purposes of improving by diking or damming the lands contained therein which are subject to overflow by tidewater or by freshets.

(20) “Director” means the Director of the Department of State Lands or designee.

(21) “Dock/Float” means an individual, unenclosed, structure which may either be secured to the adjacent or underlying land or that floats that is used for mooring boats and for similar recreational uses such as sunbathing or as a swimming platform. A structure does not lose its designation as a dock/float if it has an unenclosed recreation area, or includes a second level that is used primarily to protect a boat, but which may also be used for a recreational purpose such as a viewing platform or sunbathing deck.

(22) “Dolphin” is a cluster of piles or piling which is bound together.

(23) “Drainage District” means a public body organized under the provisions of ORS Chapter 547 for the purpose of having swamp, wet or overflowed lands or irrigated lands reclaimed and protected by drainage or otherwise from the effects of water for sanitary or agricultural purposes, or when the same may be conducive to the public health, convenience and welfare or of public utility or benefit.

(24) “Dwelling” means a structure designed or occupied as the permanent or temporary living quarters which is equipped with, but not limited to, any or a combination of sleeping cooking, bathing, toilet and heating facilities.

(25) “Flat Rate Method” means a manner of calculating annual compensation based on a fixed dollar amount per square foot of leasehold area that varies by use classification.

(26) “Floating Home” means a moored floating structure that is used as a dwelling.

(27) “Floating Recreational Cabin” is a moored floating structure, only accessible 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.

(28) “Gangway” means a walkway or access ramp which connects, and is used exclusively for the purpose of traversing from the upland to the first structure or use subject to an authorization by the Department such as a dock/float, marina, floating home, or boat house.

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

(30) “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, or currently inactive but dedicated to, helping to maintain public health and safety is said to be performing a government function.

(31) “Highest Qualified Bidder” is a person who provides the highest bid at an auction and who submits a complete application to, and meets all the requirements of the Department for an authorization as provided in OAR 141-082-0280(1) and (3).

(32) “Historical Vessel” or “Historical Structure” is a vessel or structure listed or eligible for listing on the National Register of Historic Places that is used for a non-commercial/not for profit purpose.

(33) “Holder” is the person who has been issued a waterway use authorization under these rules.

(34) “Incidental Services” include, but are not limited to restrooms, showers, minor boat and motor repair facilities; 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.

(35) “Industrial Use” means an activity conducted on, under, within, or over state-owned submerged and/or submersible land for business purposes that involves wholly or in part the fabrication, assembly, processing, or manufacture of products, structures or vessels from raw materials or fabricated parts, or that provides services such as, but not limited to storage, warehouses, factories, or shipyards.

(36) “Lease” for the purposes of these rules, is a valid, enforceable contract executed by the Department 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.

(37) “Lease Anniversary Date” means the date the lease was initially entered into and on which, in subsequent years, the annual lease compensation is due.

(38) “Limited Service Restaurant” means a business serving only pre-wrapped or pre-prepared food products, and nonperishable beverages as defined in ORS 624.010(4).

(39) “Line of Ordinary High Water” as defined in ORS 274.005, means the line on the bank or shore to which the high water ordinarily rises annually in season.

(40) “Line of Ordinary Low Water” as defined in ORS 274.005, means the line on the bank or shore to which the low water ordinarily recedes annually in season.

(41) “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.

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

(43) “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.

(44) “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 boats.

(45) “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, tugboat, barge and workboat moorage and storage; vessel repair facilities; aquaculture facilities; tour boat moorage; sea water desalination, mineral extraction, and processing facilities.

(46) “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 mooring the boat in a stationary position in the water.

(47) “Multi-Family Dock” means a non-commercial dock, maintained and owned in common by several families, and where no dues or fees are required to be paid for use of the dock. A multi-family dock is not an ownership-oriented facility.

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

(49) “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.

(50) “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."

(51) “Non-Commercial Marina” is one that is neither operated for, nor is associated with any monetary consideration or gain.

(52) “Not for Profit” refers to an association or group organized for purposes other than generating profit, such as an educational, charitable, scientific, or other organization qualifying under Section 501(c) of the Internal Revenue Code. In addition, organizations such as soil and water conservation districts and watershed councils may, at the discretion of the Department, also qualify as a non-profit organization for the purposes of these rules.

(53) “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.

(54) “Person” includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies as well as any state or other governmental or political subdivision or agency, public corporation, public authority, not for profit organizations, or Indian Tribe.

(55) “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.

(56) “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 preference right does not apply to the renewal of an existing lease where the lessee is in compliance with all the terms and conditions of the lease. A person claiming the right of occupancy to submerged and/or submersible land under a conveyance recorded before January 1, 1981, has a preference right to the requested lease area.

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

(58) “Processing Facility” means a structure or vessel where the cleaning, freezing, canning, preserving and storing of fish, crustaceans, or other forms of aquatic life are conducted.

(59) “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.

(60) “Public Agency” or “Government Agency” means an agency of the Federal Government, the State of Oregon, and every political subdivision thereof.

(61) “Public Facility License” is a form of authorization issued by the Department for structures owned, operated, and maintained, or uses made, by a public agency such as 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.

(62) “Public Trust Use(s)” means those uses embodied in the Public Trust Doctrine under federal and state law including, but not limited to navigation, recreation, commerce and fisheries, and other uses that support, protect, and enhance those uses. Examples of Public Trust Uses include, but are not limited to, short term moorage, camping, bank fishing, picnicking, and boating.

(63) “Recreation Area” means an area of an authorized structure dedicated to day use recreation.

(64) “Redetermination” or “Redetermine” means, for the purposes of these rules, a revision, conducted in accordance with the administrative rulemaking process (ORS Chapter 183), of lease compensation using the methods, formulas, classifications or other factors as specified in OAR 141-082-0305.

(65) “Registration” is a form of authorization issued by the Department allowing a qualifying structure or use to occupy state-owned submerged and/or submersible land.

(66) “Residential Use” means an activity conducted on, in, 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.

(67) “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).

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

(69) “Rip Rap” as defined in ORS 196.815(2)(e)(D), means the facing of a streambank with rock or similar substance to control erosion.

(70) “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 Department is the administrative arm of the State Land Board.

(71) “Structure” means anything placed, constructed, or erected on, in, under or over state-owned submerged and/or submersible land that is associated with a use that requires a waterway use authorization. A “structure” includes a ship, boat, or vessel occupying state-owned submerged and/or submersible land.

(72) “Sublease” means a subordinate lease between the lessee and a third party of all or part of the authorized area, where the lessee remains contractually and primarily liable under the lease with the Department.

(73) “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.

(74) “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.

(75) “Temporary Restaurant” means the same as ORS 624.010(6).

(76) “Tide gate” means a device mounted to a bridge or culvert to regulate the tidal flow or water level on the inside of the gate.

(77) “Transient Use” means any commercial 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; or any non-commercial use of state-owned submerged and/or submersible land which occurs for less-than or equal-to thirty (30) calendar days during any contiguous 12-month time period, within a distance of five miles.

(78) “Use” means an activity with or without associated structures on state-owned submerged and/or submersible land that requires a waterway use authorization under these rules.

(79) “Use Classification” means the specific category of similar uses and structures subject to authorization described in OAR 141-082-0305.

(80) “Voluntary Habitat Restoration Work” means the same as set forth in ORS 274.043(4)(d). Voluntary habitat restoration work does not include:

(a) Activities undertaken to satisfy any actual or potential legal obligation;

(b) Activities for which the person undertaking the work receives compensation of any kind to do the work; or

(c) Work completed by an entity to satisfy an environmental mitigation obligation or to generate, sell or obtain credit as an offset against actual or potential natural resource damages liability.

(81) “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.

(82) "Wharf" or "Wharves" as defined in ORS 780.040 and as used in these rules means a structure constructed or maintained by the owner of any land lying upon any navigable stream or other like water, and within the corporate limits of any incorporated town or within the boundaries of any port, that extends into the navigable stream or other like water beyond the low-water mark so far as may be necessary for the use and accommodation of 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 navigable stream or other like water. A “wharf” does not include new lands created upon submersible or submerged lands by artificial fill or deposit.

(83) “Wharf Certification” means a written certification from the Department that a structure is a wharf as defined in ORS 780.040 and as used in these rules.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0260

General Provisions

(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 Oregon State Legislature under the jurisdiction of the State Land Board and the Department, as the administrative arm of the State Land Board.

(2) The State Land Board, through the Department, 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. These rights are collectively referred to as “public trust rights.”

(4) No person is allowed to place a structure on, or make use of state-owned submerged and/or submersible land, regardless of the length of time the structure may have existed on, or the use may have occurred on the 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 structure or use has been in existence.

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

(6) The Department shall not authorize a proposed use or structure if it:

(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 rights of commerce, navigation, fishing and recreation;

(d) Would have unacceptable impacts on public health, safety or welfare, or result in the loss of, or damage to natural, historical, cultural or archaeological resources;

(e) Is prohibited by a State Land Board or Department-adopted area closure, use restriction, or waterway management plan (such as the Lower Willamette River Management Plan; a Total Maximum Daily Load Plan; or the Oregon Territorial Sea Plan);

(f) Is inconsistent with any endangered species management plan adopted by the Department under the Oregon Endangered Species Act (ORS 496.171 to 496.192); or

(g) It extends from the bank of a waterway for a distance that exceeds 25 percent of the width of the waterway, unless authorized by the Director. In determining whether to authorize a structure that extends in excess of 25 percent of the width of the waterway, the Director shall consider:

(A) Whether the structure alone, or in combination with existing structures within the waterway, would unreasonable interfere with the public trust rights of commerce, navigation, fishing and recreation;

(B) Whether the physical conditions of the land or waterway requires a structure in excess of 25 percent of the width of the waterway in order to engage in the proposed use.

(7) No applicant for, or person holding an authorization from the Department shall request from any government agency a change in the zoning for, or approved uses of a parcel of state-owned submerged and/or submersible land without first applying to, and receiving written approval from the Department to request such a change.

(8) When a use or structure subject to written authorization from the Department becomes exempt from written authorization, compensation, or both, by a change in the law or in these rules the holder may terminate the written authorization or allow the written authorization to expire by its terms. If the written authorization is terminated, the holder is not entitled to receive any reimbursement from the Department for any compensation or other fees paid by the holder to the Department under the written authorization prior to expiration or termination.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0265

Types of Uses and Required Authorizations

(1) All uses of, and structures occupying state-owned submerged and/or submersible land not otherwise exempt from authorization under these rules, require prior written authorization from the Department pursuant to these rules.

(2) Uses and structures requiring leases include, but are not limited to:

(a) Aquaculture facilities;

(b) Marine industrial/marine service uses;

(c) Floating homes, floating home moorages, and other dwellings;

(d) Fish or other processing facilities, sea water desalination and mineral extraction facilities;

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

(f) Historical vessel moorages;

(g) Commercial and non-commercial marinas;

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

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

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

(k) Commercial, industrial or residential uses;

(l) Water taxi, cruise ship and tour boat moorages;

(m) Ownership-oriented facilities; and

(n) Other similar uses and structures not exempted by statute or these administrative rules, and determined by the Director to be subject to lease.

(3) Uses and structures requiring a registration are:

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

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

(c) Water sport structures unless authorized by the Oregon State Marine Board in compliance with OAR 250-010-0097 (Application for Special Use Device Permits);

(d) Rip-rap;

(e) Structures constructed by a drainage or diking district;

(f) Tide gates;

(g) Rights of way established prior to November 1, 1981 for any county road or city street;

(h) Voluntary habitat restoration work; and

(i) Other similar structures or uses determined by the Director to be eligible for registration.

(4) Uses and structures that are eligible for a public facility license are publicly-owned, operated and maintained:

(a) Boat ramps/landings;

(b) Viewing structures;

(c) Fishing piers;

(d) Recreational boating, transient 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.

(5) Transient uses are exempt from authorization under these rules.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0270

Wharf Certification

(1) Any person owning a wharf located on state-owned submerged and submersible lands must certify that the structure is a wharf. The certification of the wharf shall be on a form provided by the Department. There is no fee associated with submission of a wharf certification.

(2) Upon receipt of a wharf certification form, the Department will review it for completeness. If the structure is a wharf as defined in ORS 780.040 and in these rules, the Department will issue to the owner a written certification that the structure is a wharf. There is no compensation due the Department for a wharf certification.

(3) In applying the definition of a wharf as set forth in ORS 780.040 and in these rules, the following criteria will apply, where appropriate:

(a) A “government function,” as used in this section, is an activity engaged in by federal, state or local government agencies in order to protect the health and safety of the public they serve;

(b) A ship, boat or vessel owned by a federal, state, or local government agency is engaged in a government function if it is exclusively dedicated to the performance of a government function and is either currently engaged in the performance of a government function (such as a ship owned or under contract to a government agency such as the United States Navy, United States Coast Guard, United States Army Corps of Engineers, or a fire, police or sheriff’s department), or if not currently engaged in the performance of a government function, is able to be quickly activated to perform the function for which it is dedicate (such as a United States Maritime Administration Ready Reserve Force ship).

(c) A structure used to load and unload passengers from a ship, boat or vessel transporting passengers (such as a passenger ferry, cruise ship, or tour boat) is not a structure engaged in the receipt and discharge of goods or merchandise.

(4) A wharf certification is valid for a term of ten years from the date it is issued. Upon expiration of a wharf certification, the owner thereof must recertify that the structure is a wharf as set forth above.

(5) If the Department does not certify the structure as a wharf, the owner thereof must obtain the appropriate authorization from the Department in compliance with these rules. Unauthorized structures will be removed pursuant to OAR 141-082-0310.

(6) A wharf certified in compliance with these rules may be repaired or replaced without prior notice to the Department. However, the owner of the wharf must notify the Department in writing describing the repair or replacement within 90 calendar days of making such repairs or replacement.

(7) The Department must be notified in writing of any:

(a) Change in the location, size, or use of the wharf at least 90 calendar days prior to such change;

(b) Change in ownership of the wharf as a result of a sale or conveyance within 90 calendar days of the transfer of ownership.

(c) Change in ownership of the wharf by operation of law resulting from a bankruptcy, foreclosure, estate settlement, or the like within 30 calendar days of the final settlement or decision. Failure of the owner to notify the Department of a change in the location, size, use, or the ownership of the wharf within the time provided will result in the automatic termination of the wharf certification.

(8) The Department will provide a copy of the wharf certification to the appropriate county official in the county where the wharf is located.

(9) If a structure is used in part as a wharf and in part for a use or uses that are subject to authorization under these rules, the owner must obtain the appropriate authorization for such use or uses from the Department in compliance with these rules.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0275

Application Requirements for a Lease or Public Facility License

(1) Any person wanting to use state-owned submerged and/or submersible land that is subject to a lease or public facility license must, using a form provided by the Department, apply for and obtain the required authorization prior to using the submerged and/or submersible land.

(2) All applications for a lease or public facility license must be fully completed and accompanied by a non-refundable fee payable to the Department in the amount of $750.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0280

Lease and Public Facility License Application Review Process

(1) Upon receipt of an application for a lease or public facility license to use state-owned submerged and/or submersible land, the Department will review it for completeness and to determine if it is for a use that conforms to the provisions of these rules. If the application is complete and the use conforms to the provisions of these rules, the application will be deemed accepted by the Department.

(2) If an application for a lease or public facility license is determined by the Department to be incomplete, the Department will notify the applicant of the additional information required. If a rejected application is resubmitted within 120 calendar days from the date the Department returned the application, no additional application fee will be assessed.

(3) If more than one application for a specific area is received by the Department, the Department will determine which proposed use best fulfills the general provisions specified in OAR 141-082-0260. The Department will then accept and proceed with that application and deny the others.

(4) Notwithstanding the provisions of OAR 141-082-0260(6)(a), the Department may accept an application for a use or structure that is not currently allowed under local land use laws, or that requires a conditional use permit from the local government agency, if the applicant is actively pursuing in good faith a change to the local land use laws or a conditional use permit that would enable the use to occur, provided the Department has approved the change under OAR 141-082-0260(7).

(5) The Department may reject an application for a lease or public facility license if:

(a) The applicant's financial status or past business/management practices or experience indicates that they may not:

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

(B) Use the land applied for in a way that meets the provisions of OAR 141-082-0260(2) and (3), or

(b) The applicant is in default on any other authorization granted to them by the Department.

(6) Following acceptance of an application for a lease, the Department will offer a preference right to lease to the eligible party as defined in OAR 141-082-0255(56) and (57), hereafter referred to as the preference right holder. The Department will take the following steps to offer a preference right:

(a) If the riparian property adjacent to the proposed lease area consists of tax lots having different owners, the Department will subdivide the requested lease area into smaller parcels by extending lines from the boundaries of, or within the boundaries of the adjacent riparian tax lots, beginning at the point on which the boundaries intersect with the line of state-ownership perpendicular to the thread of the stream so that there is a separate area offered for each adjacent riparian tax lot under separate ownership.

(b) If the riparian property adjacent to the proposed lease area consists of a single tax lot, or two or more contiguous tax lots owned by the same person, the Department will extend the boundaries of the single tax lot or combined group of tax lots beginning at the point on which the boundaries intersect with the line of ordinary high water, perpendicular to the thread of the stream creating a single lease area.

(c) For applications to use state-owned submerged and submersible land within a cove or lake, the Department will apply generally accepted surveying principles to determine the amount of lease area subject to the preference right of an adjacent riparian owner.

(d) Following identification of the preference right holder, or holders, the Department will provide written notice to each preference right holder that a lease application has been accepted by the Department. Within 30 calendar days from the date of written notice from the Department, each preference right holder must provide the Department written notice of the preference right holder’s intent to exercise the preference right to lease the proposed lease area, and submit a new application for a lease to the Department for the use applied for or any other use.

(e) Upon receipt of an application from a preference right holder, the Department will review it for completeness and to determine if it is for a use that conforms to the provisions of these rules. If the application is complete and the use conforms to the provisions of these rules, the preference right holder’s application will be deemed accepted by the Department.

(f) Upon acceptance of a preference right holder’s application, the Department will process the application as set forth in OAR 141-082-0280(8)–(11), below.

(g) If the preference right holder does not exercise the preference right, or if the preference right holder’s application is rejected, or if application is accepted but the preference right holder fails to execute a lease with the Department within 120 calendar days of the date of the preference right holder’s notice of intent to the Department to exercise the preference right, the preference right holder will be deemed to have waived the preference right and the Department will process the application initiating the offering of the preference right as set forth in OAR 141-082-0280(7)–(11), below.

(7) If the preference right holder waives the preference right, the Department will put the lease out for competitive bid pursuant to the requirements of ORS 274.040, and in accordance with the following process:

(a) The Department shall prepare and publish an advertisement for bids. The minimum bid amount will be set by the Department.

(b) A bidder may bid on the use applied for in the application initiating the offering of the preference right or any other use that conforms to the provisions of these rules and that requires an annual lease compensation rate equal to or greater than the minimum bid amount. The highest bidder will be awarded the right to lease, subject to compliance with the provisions of these rules.

(c) Following the closing of bids, the Department will provide written notice to the highest bidder of the award and of the right to enter into a lease with the Department. Within 30 calendar days from the date of written notice from the Department, the person notified must provide the Department written notice of the bidder’s intent to enter into a lease for the proposed lease area, submit a new application for a lease for the use that was the subject of the bid, and submit a bid deposit in a sum equal to one-half of the annual lease compensation for the use that was the subject of the bid. The purpose of the bid deposit is to ensure the bidder enters into a lease with the Department.

(d) Upon receipt of the application, the Department will review it for completeness and to determine if it is for a use that conforms to the provisions of these rules. If the application is complete and the use conforms to the provisions of these rules, the application will be deemed accepted by the Department. Upon acceptance of the application, the Department will process the application as set forth in OAR 141-082-0280(8)–(12), below.

(e) If the bidder awarded the right to lease does not exercise the right to lease, or if the bidder’s application is rejected, or if the application is accepted but the bidder fails to execute a lease with the Department within 120 calendar days of the date of the bidder’s notice of intent to the Department to exercise the right to lease, the right to lease will be deemed to have been waived. If bidder’s right to lease is waived, the bidder’s bid deposit will be forfeited to the Department and the Department will offer the right to enter into a lease to the next highest bidder according to the procedures set forth in OAR 141-082-0280(7).

(f) If the bidder enters into a lease with the Department, the amount of the bid deposit shall be applied to the first annual lease compensation payment.

(8) Except as provided in OAR 141-082-0280(9), the Department will notify the appropriate city or county planning department, pertinent state and federal agencies, tribal governments, ports and all lessees and adjacent riparian property owners (as available from the local county assessor's office records) of the application and request review and comment. The Department may require the applicant to respond to comments where applicable.

(9) The Department will not request review and comment on an application to obtain a lease or public facility license as provided in OAR 141-082-0280(8) if the use or structure:

(a) Has already received the necessary city or county approvals;

(b) Has been subjected to public comment during a prior circulation, and

(c) Has not changed in terms of the size of the authorized area or use of that area since the time those approvals were given.

(10) Based on the evaluation of the application and the comments received, the Department will:

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

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

(c) Deny the application.

(11) In the event the Department cannot readily determine the limits/boundaries of the authorized area requested from the description provided by the applicant or, if in the judgment of the Department, a dispute may arise concerning the description, the Department may require the applicant to have a survey of the requested area conducted by a licensed professional [engineer or surveyor]. The Department will provide survey instructions as well as specify the information required in the survey and accompanying notes. The applicant will be responsible for any costs of the survey.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0285

General Lease and Public Facility License Conditions and Form

(1) The Department will only offer a standard form of lease or public facility license that has been approved by the Department of Justice.

(2) Unless otherwise approved by the Director, the initial term for a lease or public facility license for state-owned submerged and/or submersible land shall not exceed 15 years. The length of the initial term for a lease or public facility license will be determined by the Department and will be based on:

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

(b) Requirements imposed by financial institutions as a condition of project financing; and

(c) The general provisions contained in these rules.

(3) The Department may include in a lease or public facility license, the right of the holder of a lease or public facility license to renew the authorization for an additional term not to exceed 15 years, subject to the requirements of OAR 141-082-0290.

(4) The Department may require an applicant or holder of a lease to obtain a surety bond or other form of financial assurance acceptable to the Department to ensure that the lessee will perform in accordance with all terms and conditions of the lease. The surety bond amount will be determined by the Department and will be reasonable and within generally accepted business practices. A cash deposit in an amount equal to the amount required for a surety bond and that names the State of Oregon as co-owner may be substituted in lieu of a bond.

(5) State-owned submerged and/or submersible land shall remain open to Public Trust Uses.

(a) Notwithstanding the provisions of OAR 141-088, a holder may close all or a portion of the authorized area to Public Trust Uses, or restrict Public Trust Uses within all or a portion of the authorized area, provided the closure or restriction is:

(A) Reasonably necessary to protect persons and property from harm arising from holder’s authorized use of the submerged and/or submersible land;

(B) Limited in duration; and

(C) Limited in scope.

(b) If the proposed closure or restriction is wholly or partially within the navigation channel of the waterway as established by the United States Coast Guard, or is located in such a way as to increase traffic in or otherwise impact use of the navigation channel, holder shall consult with the United States Coast Guard and the Oregon Marine Board prior to implementing the closure or restriction. Holder shall comply with all requirements imposed by the United States Coast Guard and the Oregon Marine Board.

(c) The holder must provide written notice to the Department no less than fourteen (14) days prior to the implementation of any closure or restriction. The written notice must identify the need for, the scope of, and the duration of the closure or restriction, and must certify that holder has consulted with the United States Coast Guard and the Oregon Marine Board regarding the closure or restriction, if required under OAR 141-082-0285(5)(b).

(d) The Department, in its sole discretion, may at any time require holder to terminate or modify the closure or restriction. The Department, in its sole discretion, may at any time require the closure or restriction to be established pursuant to OAR 141-088.

(6) The holder may restrict public use of holder-owned property or structures authorized under a lease or public facility license.

(7) The Department 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.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0290

Lease and Public Facility License Renewal

(1) Notwithstanding any provisions in the lease or public facility license to the contrary, the holder of a lease or public facility license containing a right to renew, shall exercise the right to renew as set forth below.

(2) The holder of a lease or public facility license shall exercise the right to renew not less than 90 calendar days prior to the expiration of the then current term of the lease or public facility license. If the holder of a lease or public facility license fails to renew within the time required, the lease or public facility license will terminate at the expiration of the current term.

(3) To exercise the right to renew, the holder of a lease or public facility license must submit to the Department:

(a) A written statement, on a form provided by the Department:

(A) Notifying the Department of the holder’s intent to renew;

(B) Certifying that the uses or structures that are the subject of the lease or public facility license are consistent with local, state, or federal law; and

(C) Certifying that the existing uses and structures are consistent with those authorized under the lease or public facility license.

(b) A non-refundable renewal fee of $375 payable to the Department.

(4) Upon receipt of the written statement and renewal fee, the Department shall determine, in its sole discretion, whether:

(a) The right to renew was exercised not less than 90 calendar days prior to the expiration of the then current term of the lease or public facility license;

(b) The lessee or licensee has fully complied with the terms of their authorization, the applicable statutes, or Oregon Administrative Rules; and

(c) The holder of the lease or public facility license has fully complied with any other authorization granted to them by the Department.

(5) If the Department determines that the renewal complies with the requirements of OAR 141-082-0290(4), the Department will provide written notice to the holder that the lease or public facility license has been renewed for the additional term stated in the notice. As a condition of renewal, the Department shall have the right to require amendment to the terms and conditions of the lease at the time of renewal. If the lease or public facility license contains a provision requiring that the annual compensation be re-determined on renewal, the written notice from the Department shall include the new annual compensation rate.

(6) If the Department determines that the renewal does not comply with the requirements of OAR 141-082-0290(4), the Department will provide written notice to the holder that the lease or public facility license that the lease or public facility license will not be renewed. In that event, the lease or public facility license will terminate at the expiration of the current term.

(7) If the lease or public facility license does not contain a right to renew, the holder of the lease or public facility license may apply for a new lease or public facility licenses as provided in these rules.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0295

Lease and Public Facility License Modifications for Size and Use

(1) The holder of a lease or public facility license may not modify the authorized use or authorized area, without prior written authorization from the Department that shall include current certification that the proposed modification is consistent with local, state, or federal law. A reduction in the size of the authorized area does not require prior written authorization from the Department.

(2) The holder of a lease or public facility license may change the internal arrangement of the uses or structures within an authorized area without prior written authorization from the Department. However, the holder of a lease or public facility license must provide the Department written notice of the change to the internal arrangement of the uses or structures within the authorized area no less than 90 days after the change. The written notice to the Department must include a drawing with dimensions and photographs documenting the change in the internal arrangement of the uses or structures.

(3) In order to request a modification of the authorized use, or a modification of the authorized area, the holder of a lease or public facility license must submit an application to the Department, on the form provided by the Department together with an application fee of $750. No application is required for the reduction in the size of the authorized area. However, the holder of a lease or public facility license must provide the Department written notice of the reduction in the size of the authorized area, and an administrative fee of $375, no less than 90 days after the change. The written notice to the Department must include a drawing with dimensions and photographs documenting the change in the authorized area.

(4) The Department will process and review all applications for modification of the authorized use or for modification of the authorized area under a lease or public facility license in the same manner as a new lease or public facility license application as specified in these rules.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0300

Subleasing and Assignment of Leases and Public Facility Licenses

(1) Subleasing

(a) The holder of a lease may not sublease any portion of the authorized area without the prior written consent of the Department, unless subleasing without the Department’s consent is specifically permitted under the lease or by these rules. The Department may terminate a lease where any portion of the authorized area has been sublet without the Department’s written consent.

(b) Notwithstanding any provisions in the lease to the contrary, the holder of a lease shall comply with the process set forth below in subleasing any portion of an authorized area where Department’s consent is required by the lease or by these rules. In order to sublease any portion of an authorized area where the Department’s consent is required by the lease or by these rules, the holder must submit an application to the Department, on a form provided by the Department, together with a copy of the proposed sublease for review and approval and a non-refundable application fee of $750 payable to the Department. The application, proposed sublease, and application fee must be submitted to the Department no less than 60 calendar days prior to the date of the proposed subletting.

(c) The holder of a lease may grant a sublease to another person without prior consent of the Department when:

(A) The lease specifically authorizes subleasing without the Department’s prior written consent, or

(B) The sublease authorizes use of less than the entire authorized area and the use allowed under the sublease is included in the authorized use of the lease or (for example, the rental of boat slips).

(2) Assignment of a Lease

(a) The holder of a lease may not assign the lease without the prior written consent of the Department, unless assignment without the Department’s consent is specifically permitted under the lease or by these rules.

(b) Notwithstanding any provisions in the lease to the contrary, the holder of a lease shall comply with the process set forth below in assigning the lease where the Department’s consent to assignment is required by the lease or by these rules. In order to assign a lease where the Department’s consent is required by the lease or by these rules, the holder of a lease must submit an application to the Department, on a form provided by the Department, together with a non-refundable application fee of $750 payable to the Department. The application and application fee must be submitted to the Department no less than 60 calendar days prior to the date of the proposed assignment.

(c) The Department may reject an application for assignment of a lease if the Department determines, in its sole discretion, that:

(A) The proposed assignee's financial status or past business/management practices or experience indicates that they may not be able to fully meet the terms and conditions of a lease;

(B) The proposed assignee is in default on any other authorization granted to them by the Department.

(d) If the application for assignment is approved by the Department, the Department will prepare an assignment form for the signature of the lessee, the proposed assignee, and the Department. The assignment will be effective on the date of signature by all parties.

(e) As part of the consideration for the Department’s consent to the assignment, the Department shall have the right to require amendment to the terms and conditions of the lease prior to the assignment.

(f) Lessee shall remain liable for the performance of all obligations under the lease following assignment, unless the Department consents, in its sole discretion and in writing, to release lessee from liability.

(g) To assign a lease to a spouse or child on the death of the holder, the spouse or child must submit an application to the Department, on a form provided by the Department. There is no application fee associated with the assignment of a lease to the holder’s spouse or child on the death of the holder.

(3) Assignment of a Public Facility License

(a) The holder of a public facility license may not assign the public facility license without the prior written consent of the Department, unless assignment without the Department’s consent is specifically permitted under the public facility license or by these rules.

(b) In order to assign a public facility license where Department’s consent is required by the public facility license or by these rules, the holder of a public facility license must submit an application to the Department, on a form provided by the Department.

(c) There is no application fee required for an assignment of a public facility license to another public agency.

(d) If the application for assignment is approved by the Department, the Department will prepare an assignment form for the signature of the licensee, the proposed assignee, and the Department. The assignment will be effective on the date of signature by all parties.

(e) As part of the consideration for the Department’s consent to the assignment, the Department shall have the right to require amendment to the terms and conditions of the license prior to the assignment.

(f) Licensee shall remain liable for the performance of all obligations under the license following assignment, unless the Department consents, in its sole discretion and in writing, to release licensee from liability.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0305

Lease Compensation Formulas, Methods and Annual Lease

Compensation Adjustments

(1) The Department has established three methods to determine the compensation owed for the use of state-owned submerged and/or submersible land. For some uses, more than one method is available.

(2) The three methods are termed the:

(a) “Flat Rate Method” (which is determined by multiplying the number of square feet of an area requested, or that has been authorized, by a specific rate unique to the use).

(b) “Riparian Land Value Rate Method” (which is based on a percent of the assessed value of the upland adjacent to the area which has been requested, or that has been authorized).

(c) “Percent of Gross Method” (which is based on the percent of the gross income received by the lessee from using the area that has been requested, or that has been authorized).

(3) Regardless of which method (OAR 141-082-0305(2)(a), (b) or (c)) is used, under no circumstances will the compensation owed be less than the base minimum rate, set forth in OAR 141-082-0305(6).

(4) For many use classifications, an applicant has the option of choosing among the above three methods to determine the compensation owed for their use of state-owned submerged and/or submersible land. Under the circumstances identified in OAR 141-082-0305(7), the Department will choose the method to be used to determine the compensation owed to the Department for a use of state-owned submerged and/or submersible land.

(5) Once an applicant or the Department has selected a method of determining compensation, that method will remain in effect for the entire term of the lease unless there is a change in the use.

(6) The base minimum annual compensation for any lease will be the greater of:

(a) $0.0075 per square foot times the lease area or three hundred and fifty dollars ($350) which is rate in effect in July 2012. The base minimum annual compensation rates will be increased by three percent each year on July 1st; or

(b) The annual compensation resulting from a competitive the bid award.

(7) In the event the lessee and the Department cannot agree on the method of calculating the annual compensation or any aspect of the method to be used, the annual compensation owed by the lessee will be determined by the Department using the flat rate method which will remain in effect until such time as the a new rate is implemented at the next lease anniversary date. If, during the term of the lease, the lessee and the Department reach agreement on the method of compensation, the new lease rate will be implemented on the next lease anniversary date.

(8) The annual compensation for individual non-commercial docks, boat houses, and floating recreational cabins not eligible for registration and that are not contained within marinas or moorages will be calculated based on the area encompassed by the perimeter of the structures, excluding gangways, protective booms, pilings, and dolphins.

(9) The following eight use classifications and related lease compensation formulas described in OAR 141-082-0305(9)(a) through (h) will be used to establish annual lease compensation payments or minimum bid, whichever is applicable, subject to the base minimum annual lease compensation payment established in OAR 141-082-0305(6). For the riparian land value method described below, utility, railroad or publicly-owned land will not be used for establishing the assessed or appraised value unless the assessed value is readily available and reflective of comparable similarly situated tax lots. If not, the assessed or appraised value of privately owned comparable tax lots will be substituted. In cases where the adjacent riparian tax lot is less than 100 feet deep, the Department will assume the adjacent riparian tax lot has a depth of 100 feet and calculate the assessed or appraised value based on this derived area.

Formula Factors:

AV = Assessed value or appraised value (as defined in OAR 141-082-0255(6) and (8) of these rules) whichever is less except as stated in OAR 141-082-0305(16) and (17).

LA = Authorized lease area in square feet of state-owned submerged and submersible land.

AC = Annual compensatory payment

Uses and Compensation Determination Methodologies:

(a) Commercial marinas and docks, and commercial floating home moorages. The annual lease compensation payment calculation is the lesser of the:

(A) Flat rate method of $0.0257 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Three percent of actual annual gross income; or

(C) Riparian land value method of AV x LA x five percent = AC.

(b) Non-commercial marinas and docks, including all types of ownership oriented marinas and docks and excluding those structures qualified for registration and exempt from lease (e.g., docks and boat houses less than 2,500 square feet). The annual lease compensation payment calculation is the lesser of the:

(A) Flat rate method of $0.0257 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Three percent of the actual annual gross income; or

(C) Riparian land value method of AV x LA x five percent = AC.

(c) Non-commercial floating home moorages including those operated by ownership-oriented organizations. The annual lease compensation calculation is the lesser of the:

(A) Flat rate method of $0.0257 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Three percent of actual annual gross income; or

(C) Riparian land value method of AV x LA x five percent = AC.

(d) Individual floating homes and similar structures and uses such as, but not limited to, any structures connected to utilities and associated with residential use not eligible for registration. The annual lease compensation calculation is the lesser of the:

(A) Flat rate method of $0.0257 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Riparian land value method of AV x LA x five percent = AC.

(e) Historical vessels or structures not eligible for registration and owned by non-profit organizations (limited to youth-oriented, historical, educational, or scientific organizations). The annual lease compensation is $300 (which will be increased each year on July 1st by three percent) per year per structure or combination of structures at a single location or facility.

(f) Log boom areas, log raft storage areas. The annual lease compensation calculation is the lesser of the:

(A) Flat rate method of $0.0128 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Riparian land value method of AV x LA x five percent = AC.

(g) Marine industrial and marine service commercial uses/structures. The annual compensation payment calculation is the lesser of the:

(A) Flat rate method of $0.4408 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Riparian land value method of AV x LA x five percent = AC.

(h) Non-Marine Uses. The annual compensation payment calculation is the lesser of the:

(A) Flat rate method of $0.5147 per square foot (which will be increased each year on July 1st by three percent) x LA; or

(B) Riparian land value method of AV x LA x five percent = AC.

(10) The above described flat rate method factors (OAR 141-082-0305(9)(a) through (h)) are those in effect in July 2012. Each flat rate method factor will be increased by three percent every year on July 1st. Annual lease compensation will be billed on the basis of the adjustments described in OAR 141-082-0305(9). For any newly executed lease, the applicable flat rate that will be applied is that which is in effect at the time of the execution of the lease. The annual compensatory payment for executed leases will also be adjusted/redetermined annually on each lease anniversary date by increasing the annual lease compensation payment by three percent rounded to the nearest dollar. This annual compensatory payment adjustment/redetermination for executed leases shall not apply to those calculated based on actual annual gross income.

(11) Compensation rates for each use within each authorized area will be calculated by the Department on a square foot basis of state-owned submerged and/or submersible land as applicable for each use classification (for example, non-commercial marina), and based on the lessee's choice of rate calculation methods except as noted in OAR 141-082-0305(7) above. More than one use (known as a mixed use) may be permitted by the Department within an authorized area. Compensation rates will be calculated for each use area based on the most applicable use classification, as specified in OAR 141-082-0305(9)(a) through (h), and added together to derive the total annual compensation payment or minimum bid for the entire leasehold. Compensation for each use classification is subject to the base annual minimum compensation as specified in OAR 141-082-0305(6).

(12) Documentation supporting the annual reporting statement submitted to the Department by a lessee must be available upon request by the Department if the lessee reports annual compensation based on three percent of actual annual gross income.

(13) The Department will notify lessees in writing of the new annual compensatory payment not less than 60 calendar days in advance of the lessee's lease anniversary date.

(14) In calculating the initial annual compensatory payment using the riparian land value method, a lessee or lease applicants may substitute an appraised value of the adjacent riparian tax lot or as determined by the Department, a comparable tax lot. The Department reserves the right to evaluate, review, and challenge the appraisal. If required, the appraisal will be conducted at the lessee or lease applicant's expense and prepared by a state-certified appraiser. The Department will provide instructions to the appraiser prior to conducting the appraisal. In the event of a dispute between the Department and the lessee or lease applicant, the value will be determined through the three-appraiser method specified in ORS 274.929(3).

(15) If in the process of using the riparian land value method for calculating the initial annual compensation payment, the AV is found to be artificially depressed due to the presence of hazardous materials or some other extenuating circumstance(s) as determined by the Department, another comparable upland tax lot will be selected by the Department as the basis for calculating the initial annual lease compensatory payment.

(16) The Director reserves the right to establish a rate of compensation due to the Department for all other structures and uses that do not fit into any of the above categories, or which are unique. However, the rate of compensation will not be less than the base minimum annual compensatory payment as defined by OAR 141-082-0305(6).

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0310

Removal of Unauthorized Structures

(1) The Department may require the owner of an unauthorized structureon state-owned submerged and/or submersible land to remove it at their own expense.

(2) If the owner refuses to remove the unauthorized structure, or if no owner can be located, the Department may, at its own expense, remove the structure from state-owned submerged and/or submersible land.

(3) In the event that the Department does remove an unauthorized structure, it will pursue whatever legal options are available to recover such removal and any associated disposal and environmental clean-up costs from the owner, including placing a lien on the assets of that owner.

(4) If the owner does not pay the costs incurred in the removal of the unauthorized structure by the Department, the Department may impose a civil penalty pursuant to OAR 141-082-0315.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0315

Civil Penalties

(1) The unauthorized use of state-owned land managed by the Department constitutes a trespass.

(2) In addition to any other penalty or sanction provided by law, the Director may assess a civil penalty of not less than $50 per day, and not more than $1,000 per day of violation of any provision of these rules or ORS 274 that occurs on state-owned submerged and/or submersible lands pursuant to ORS 274.992.

(3) The Director will give written notice of a civil penalty incurred under OAR 141-082-0315(2) by registered or certified mail to the person incurring the penalty. The notice will include, but not be limited to the following:

(a) The particular section of the statute, rule, or written authorization involved;

(b) A short and clear statement of the matter asserted or charged;

(c) A statement of the party's right to request a hearing within 20 calendar days of the date of service of the notice;

(d) The time allowed to correct a violation; and

(e) A statement of the amount of civil penalty which may be assessed and terms and conditions of payment if the violation is not corrected within the time period stated.

(4) The person incurring the penalty may request a hearing within 20 calendar days of the date of service of the notice provided in OAR 141-082-0315(3). Such a request must be in writing. If no written request for a hearing is made within the time allowed, or if the party requesting a hearing fails to appear, the Director may make a final order imposing the penalty.

(5) The amount of a civil penalty will be not less than $50 per day, or more than $1,000 per day for violation of an authorization issued under ORS 274.040 or violation of any administrative rule adopted under ORS 274.040.

(6) In imposing a penalty under OAR 141-082-0315 of these rules, the Director will consider the following factors as specified in ORS 274.994:

(a) The past history of the person incurring a penalty with regard to other trespasses on state-owned land managed by the Department and the willingness of the person to take all feasible steps or procedures necessary or appropriate to correct any violation;

(b) Any prior violations of statutes, rules, orders and authorizations pertaining to submerged and/or submersible lands;

(c) The impact of the violation on public trust uses of commerce, navigation, fishing and recreation; and

(d) Any other factors determined by the Director to be relevant and consistent with the policy of these rules.

(7) Pursuant to ORS 183.090(2), a civil penalty imposed under OAR 141-082-0315 will become due and payable 10 calendar days after the order imposing the civil penalty becomes final by operation of law or on appeal.

(8) If a civil penalty is not paid as required by OAR 141-082-0315, interest will accrue at the maximum rate allowed by law.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0320

Registration of Structures and Uses

(1) Structures and uses subject to registration under this section are set forth in OAR 141-082-0265(3).

(2) The Director may determine that other structures and uses similar to those specified in OAR 141-082-0265(3) are also subject to registration and the rules governing registrable structures and uses. If the Director determines that a structure or use is registrable, s/he will assign an appropriate fee.

(3) A person who fails to apply for and obtain a registration, or who fails to renew an expired registration, for a structure or use subject to a registration under these rules is in trespass and subject to the civil penalties provided in OAR 141-082-0315.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0325

Registration Requirements and Provisions

(1) All persons:

(a) Owning or placing structures on, or using state-owned submerged and/or submersible land in a way that is subject to registration under these rules must register the structure or use with the Department.

(b) Changing the location of a registered structure or use must notify the Department in writing 90 calendar days prior to such placement, or change in location.

(c) Making any modifications, including a change in size of the registered structure or a change in the registered use must notify the Department 90 calendar days prior to making such a modification.

(2) Except as provided in OAR 141-082-0325(3), an applicant for a registration must use a form provided by the Department and submit a registration form for all registrable structures or uses.

(3) A single registration form may be used to apply for a registration for all dikes, rip-rap, tide gates, erosion control barriers and other structures that occupy state-owned submerged and submersible land if they are located within:

(a) The jurisdiction of, and actively maintained by a diking or drainage district, or

(b) Contiguous parcels owned by the same person and maintained by that person.

(4) Except as provided in OAR 141-082-0335(2), each registration must be accompanied by a fee payment in the amount indicated in OAR 141-082-0335 of these rules.

(5) The Department will not issue a registration where the Department determines that the use or structure:

(a) Will unreasonably interfere with the public's right to use the waterway and state-owned submerged and submersible land for fishing, navigation, commerce, and recreation;

(b) Will not comply with all applicable local, state, and federal laws including the local comprehensive plan and zoning requirements; and

(6) Prior to issuance of a registration to use or occupy state-owned submerged and submersible land for the uses described in OAR 141-082-0265(3)(e), (f), (g) and (h) of these rules, the applicant, as a condition of their authorization and as required by ORS 274.043(6), must indemnify and hold harmless the State of Oregon from all liability and claims arising from or attributable to the use or occupation. The applicant’s obligation to indemnify and hold harmless the State of Oregon from all liability and claims arising from or attributable to the use or occupation must be in writing on a form provided by the Department.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0330

Registration Terms and Conditions

(1) A registration issued by the Department will be for a term of five years for all structures and uses.

(2) Unless otherwise prohibited by law, any registered structure or use in compliance with these rules may be repaired or replaced in a manner consistent with the requirements of OAR 141-082-0325, and remain authorized under the original registration issued by the Department. However, any person making such repairs to a structure that changes its use or the area it occupies, or who replaces a structure entirely, must notify the Department in writing within 90 calendar days of making such repairs or replacement as a condition of the registration.

(3) The Department must be notified in writing of any:

(a) Change in the location or size of a registered structure or use 90 calendar days prior to such change;

(b) Change in ownership of a registered structure or use as a result of a sale or conveyance within 90 calendar days of the transfer of ownership.

(c) Change in ownership by operation of law resulting from a bankruptcy, foreclosure, estate settlement, or the like within 30 calendar days of the final settlement or decision. Failure to notify the Department of a change in the location, size, or the ownership of, a registered structure or use within the time provided will result in the automatic termination of the registration.

(4) Registrations for privately-owned structures and uses subject to registration must be renewed every five years. An owner who fails to renew an expired registration for a structure or use subject to a registration under these rules is in trespass and subject to the civil penalties provided in OAR 141-082-0315.

(5) The Department may condition a registration to ensure compliance with law or these rules. The Department may modify the conditions of a registration, or terminate a registration, if during the term of the registration the Department determined that the structures or uses do not comply with law or these rules.

(6) The Department will provide a copy of the registration to the appropriate county official in the county where the registered structure is located.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0335

Fees

(1) Except as provided in OAR 141-082-0335(2), the fee for each five-year term of a registration is as follows:

(a) $125 until December 31, 2012;

$150 from January 1, 2013 through December 31, 2013;

$175 from January 1, 2014 through December 31, 2014;

$200 from January 1, 2015 through December 31, 2015;

$225 from January 1, 2016 through December 31, 2016;

$250 on and after January 1, 2017 for a dock/float or boat house 1,000 square feet or less in size (excluding associated gangways, dolphins, pilings and protective booms); and any boat ramp not associated with another authorized waterway structure.

(b) $250 until December 31, 2012;

$300 from January 1, 2013 through December 31, 2013;

$350 from January 1, 2014 through December 31, 2014;

$400 from January 1, 2015 through December 31, 2015;

$450 from January 1, 2016 through December 31, 2016;

$500 on and after January 1, 2017 for a dock/float or boat house from 1,001 square feet to 2,000 square feet in size (excluding associated gangways, dolphins, pilings and protective booms).

(c) $300 until December 31, 2012;

$360 from January 1, 2013 through December 31, 2013;

$420 from January 1, 2014 through December 31, 2014;

$480 from January 1, 2015 through December 31, 2015;

$540 from January 1, 2016 through December 31, 2016;

$600 on and after January 1, 2017 for a dock/float or boat house from 2,001 square feet to 2,500 square feet in size.

(d) $350 until December 31, 2012;

$420 from January 1, 2013 through December 31, 2013;

$490 from January 1, 2014 through December 31, 2014;

$560 from January 1, 2015 through December 31, 2015;

$630 from January 1, 2016 through December 31, 2016;

$700 on and after January 1, 2017 for a floating recreational cabin.

(e) $125 until December 31, 2012;

$150 from January 1, 2013 through December 31, 2013;

$175 from January 1, 2014 through December 31, 2014;

$200 from January 1, 2015 through December 31, 2015;

$225 from January 1, 2016 through December 31, 2016;

$250 on and after January 1, 2017 for a water sport structure.

(2) No fee or other compensation is required for registering or renewing a registration for the following uses or structures:

(a) Rip-rap and tide gates.

(b) Structures maintained by a diking or drainage district.

(c) Rights of way established prior to November 1, 1981 for any county road or city street.

(d) Voluntary habitat restoration work.

(3) The fee for structures or uses not listed above that are subject to registration under these rules as determined by the Director under OAR 141-082-0265(3)(i) will be determined on a case by case basis and be not less than:

$125 through December 31, 2012;

$150 from January 1, 2013 through December 31, 2013;

$175 from January 1, 2014 through December 31, 2014;

$200 from January 1, 2015 through December 31, 2015;

$225 from January 1, 2016 through December 31, 2016;

$250 on and after January 1, 2017.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

141-082-0340

Appeals

(1) An applicant for an authorization, or any other person adversely affected by a decision by the Department concerning an authorization, closure of, or restriction to the use of state-owned submerged and/or submersible land may appeal the decision to the Director.

(a) Such an appeal must be received by the Director no later than 30 calendar days after the delivery of the decision.

(b) The Director will decide the appeal within 60 calendar days after the date of delivery of the appeal.

(c) The Director may affirm the decision, issue a new or modified decision, or request the appellant to submit additional information to support the appeal.

(2) When an applicant for an authorization to use state-owned submerged and/or submersible land or any other person adversely affected by a decision of the Department concerning an authorization has exhausted the appeal process before the Director, s/he may submit an appeal for a contested case hearing pursuant to ORS 183.413 through 183.470.

Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS 274
Hist.: DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

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