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The Oregon Administrative Rules contain OARs filed through November 15, 2014
 
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DEPARTMENT OF STATE LANDS

 

DIVISION 145

RULES GOVERNING THE MANAGEMENT OF STATE-OWNED SUBMERGED
AND SUBMERSIBLE LAND SUBJECT TO REMEDIATION AND HABITAT RESTORATION ACTIVITIES

141-145-0000

Purpose and Applicability

(1) These rules:

(a) Govern the granting and renewal of access authorizations, leases, and easements issued to facilitate remediation conducted pursuant to an order issued by the Oregon Department of Environmental Quality (ODEQ) or the United States Environmental Protection Agency (EPA) and habitat restoration activities in, on, under or over state-owned submerged and submersible land including, but not limited to:

(A) Site monitoring;

(B) Site habitat restoration;

(C) Environmental dredging;

(D) Mitigation;

(E) Monitored natural recovery;

(F) Enhanced monitored natural recovery; and

(G) Construction and maintenance of a soil cap or sediment cap   

(b) Are to facilitate access needed for remediation and restoration of state-owned submerged and submersible lands and not to require any action that is contrary to or in conflict with any order, work plan, design, or other deliverable approved by the ODEQ or EPA, and do not apply to the granting of:

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

(B) Authorizations for leases, licenses and registrations for structures on and uses of state-owned submerged and submersible lands governed by division 82 of the Department’s rules;

(C) Authorizations for special uses of state-owned submerged and submersible land such as to conduct site investigations and scientific experiments as governed by division 125 of the Department’s administrative rules;

(D) Land sale approvals governed by division 67 of the Department’s administrative rules.

(E) Any regulatory permits that may be required, including permits governed by division 85 of the Department’s administrative rules.

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

(G) Authorizations for uses other than removal, remediation, or restoration.

(c) Clarify that all uses of, and structures occupying state-owned submerged and submersible land not otherwise exempt from authorization under these rules or other state law, 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 141-145-0015 that are subject to a specific authorization under these rules.

(3) An application submitted under these rules to remove royalty exempt material (as defined in ORS 274.550) does not require a sand and gravel authorization under division 14. Submitting an application for this activity under these rules satisfies the requirement that an application be submitted under division 14.

(4) Requirements of the Lower Willamette River Management Plan, OAR 141-080-0105, do not apply to authorizations issued under these rules.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0005

Definitions

As used in these rules:

(1) “Access Authorization” is a written authorization issued by the Department for a specific length of time determined by the Director that allows access to state land for remediation or habitat restoration activities.

(2) “Applicant” is any person applying for an authorization.

(3) "Appraised Value" means an estimate of current fair market value of property (not including improvements) in dollars per square foot derived by disinterested persons of suitable qualifications, for example, a licensed independent appraiser.

(4) "Assessed Value" means the current fair market value of the property (not including improvements) in dollars per square foot assigned to the land within the adjacent riparian tax lot or comparable tax lot by the county tax assessor.

(5) “Authorization” means an approval of a use of state land granted by the Department in its capacity as a landowner, including for purposes of these rules access authorizations, leases, and easements.

(6) “Authorized Area” is the area of state-owned land defined in the authorization for which a use is authorized.

(7) “Compensation” or "Compensatory Payment" is the amount of money, or something of equivalent value, paid or provided for an authorization to the Department for the use of state-owned land.

(8) “Conservation Easement” as defined in ORS 271.715(1), means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open space values of real property, ensuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

(9) “Department” means the Department of State Lands. The Department is the administrative arm of the State Land Board.

(10) "Director" means the Director of the Department of State Lands or designee.

(11) "Easement" is an authorization granted by the Department that gives a person the use of a specifically designated parcel of state-owned land for a specific purpose and length of time. An easement does not convey any proprietary or other rights of use to the holder other than those specifically granted in the easement authorization.

(12) “Enhanced Monitored Natural Recovery” combines natural recovery with engineering approaches such as installing flow control structures to encourage natural deposition, or the placement of a thin layer of additional clean sediment or additives to enhance sorption or chemical transformation.

(13) “Environmental Dredging” means the removal of contaminated sediments from a waterbody as part of a removal, remediation or habitat restoration project.

(14) "Fair Market Value" is the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell, and both having reasonable knowledge of the relevant facts concerning the property.

(15) “Habitat Restoration” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural functions to the lost or degraded native habitat.

(16) “Holder” is the person who has been issued an authorization under these rules.

(17) “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 submersible land for a specific use under the terms and conditions of the lease and these rules.

(18) “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.

(19) “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.

(20) “Monitored Natural Recovery” is a remedy for contaminated sediment that uses ongoing, naturally occurring processes to contain, destroy, or reduce the bioavailability or toxicity of contaminants in sediment.

(21) "Mitigation" means compensating for the effect by creating, restoring, enhancing or preserving substitute functions and values for the waters of this state.

(22) “Natural Resource Damage Assessment” is a process by which a designated Natural Resources Trustee evaluates how natural resources were harmed over the time that an area has been contaminated and develops a restoration plan to compensate for those losses.

(23) “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.

(24) "Permanent Easement" is a type of easement that is issued in perpetuity.

(25) “Permanent Structure” means a structure existing or intended to exist for an indefinite period.

(26) "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.

(27) “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 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 submersible land under a conveyance recorded before January 1, 1981, has a preference right to the requested lease area.

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

(29) “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.

(30) “Remediation” or “Remedial Action” as defined in ORS 465.200(23), means those actions consistent with a permanent remedial action taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of a hazardous substance so that it does not migrate to cause substantial danger to present or future public health, safety, welfare or the environment. “Remedial action” includes, but is not limited to:

(a) Such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative drinking and household water supplies, and any monitoring reasonably required to assure that the actions protect the public health, safety, welfare and the environment.

(b) Offsite transport and offsite storage, treatment, destruction or secure disposition of hazardous substances and associated, contaminated materials.

(c) Such actions as may be necessary to monitor, assess, evaluate or investigate a release or threat of release.

(31) “Removal” as defined in ORS 465.200(25), means the cleanup or removal of a released hazardous substance from the environment, such actions as may be necessary taken in the event of the threat of release of a hazardous substance into the environment, such actions as may be necessary to monitor, assess and evaluate the release or threat of release of a hazardous substance, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize or mitigate damage to the public health, safety, welfare or to the environment, that may otherwise result from a release or threat of release. “Removal” also includes but is not limited to security fencing or other measures to limit access, provision of alternative drinking and household water supplies, temporary evacuation and housing of threatened individuals and action taken under ORS 465.260.

(32) “Site Diminishment Impact” is a measure of the negative effect, including but not limited to use restrictions, of the applicant’s proposed use on public trust uses of the state-owned submerged and submersible lands. It is used in calculating the fair compensation that a holder will pay for the use of the authorized area.

(33) “Site Monitoring” means visiting a property on an established schedule to check compliance with an order or other agreement to complete remedial action or habitat restoration; or periodically visiting a property to determine compliance with the terms of a conservation easement. This includes the use of property and placement of structures not eligible for an authorization under Division 125.

(34) “Soil Cap” or “Sediment Cap” means the placement of capping material over contaminated material. The contaminated material remains permanently in place.

(35) "State Land" or "State-Owned Land" is land owned or managed by the Department or its agents and includes both Trust Land and Non-Trust Land.

(36) “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.

(37) “Structure” means anything placed, constructed, or erected on, in, under or over state-owned submerged and submersible land that is associated with a use that requires an authorization. A “structure” includes but is not limited to, a soil or sediment cap, moored dredge equipment, monitoring equipment, a ship, boat, vessel, or components of a restoration project.

(38) "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.

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

(40) "Use" means an activity on state-owned Trust and Non-Trust Land that requires an authorization under these rules.

(41) “Use Restriction” means a proposed activity that encumbers state land resulting in the limiting or restriction of one or more public trust uses.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0010

General Provisions

(1) All tidally influenced and title navigable waterways (referred to as state-owned submerged and 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. This responsibility requires that the Department receives fair compensation for the use or disposal of state-owned land managed by the Department.

(3) State-owned submerged and 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 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. Ownership of state-owned submerged and 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 submersible land must conform to applicable local (including local comprehensive land use planning and zoning ordinance requirements), state and federal laws.

(6) No applicant or holder is allowed to request from any government agency a change in the zoning for, or approved uses of state-owned submerged and submersible land without first applying to, and receiving written approval from the Department.

(7) All references in these rules to “state-owned submerged and submersible land” include state-owned submerged lands or submersible lands or both.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0015

Types of Authorizations

(1) Access Authorization: Uses of state-owned submerged and submersible land for a term less than three (3) years, for purposes of, including but not limited to:

(a) Site monitoring;

(b) Habitat restoration;

(c) Environmental dredging;

(d) Monitored natural recovery; or

(e) Enhanced monitored natural recovery.

(2) Easement: Uses of state-owned submerged and submersible land for more than three (3) years including but not limited to:

(a) Construction and maintenance of permanent structures associated with removal or remedial activities. For the purposes of these rules, soil and sediment caps are considered a permanent structure.

(b) Site monitoring;

(c) Environmental dredging;

(d) Monitored natural recovery; or

(e) Enhanced monitored natural recovery

(3) Lease: Uses of state-owned submerged and submersible land including but not limited to construction and maintenance of a non-permanent structure or structures.

(4) Conservation Easement: Use of state-owned submerged and submersible land for which the applicant is seeking long-term use restrictions to protect its conservation value. Conservation easements may be issued in perpetuity or for a term of years.

(5) The Department may, at its discretion, authorize multiple uses by a holder under one authorization. The Department will evaluate the proposed project as a whole, and offer the authorization that accommodates the longer term use. For example, the Department may evaluate a project that includes environmental dredging for one year and monitored natural recovery for twenty years. In this example the Department would offer one easement, or lease, that would authorize both uses of state-owned submerged and submersible lands.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0020

Pre-Application Requirements

Prospective applicants for an easement, conservation easement, or lease shall meet with Department staff to discuss the proposed project and use before submitting an application to the Department. This meeting may be in person or through other means acceptable to the Department. The Department may invite other government entities and affected stakeholders to take part in a pre-application meeting.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0025

Application Requirements for an Access Authorization, Lease or Easement

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

(2) An application for an access authorization should be submitted at least ninety (90) days before the requested issuance date.

(3) An application for an easement or lease should be submitted at least one hundred and twenty (120) days before the requested issuance date.

(4) The applicant for an easement or lease must have a survey of the requested area conducted by a registered professional land surveyor. The Department will provide survey instructions and specify the information required in the survey and accompanying notes. The application will not be deemed complete without the survey. The applicant is responsible for any costs of the survey.

(5) All applications for an access authorization must be fully completed and accompanied by a non-refundable application fee in the amount of $750, payable to the Department.

(6) All applications for an easement, conservation easement, or lease administered under these rules must be fully completed and accompanied by a non-refundable application fee in the amount of $1,250, payable to the Department.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0030

Access Authorization and Easement Application Review and Approval Process

(1) Upon receipt of an application to use state-owned submerged and submersible land, the Department will review it to determine if it is complete. If the application is complete and the use is subject to these rules, the application will be deemed accepted by the Department.

(2) If an application is determined by the Department to be incomplete, the Department will notify the applicant that the application is incomplete and provide a list of additional information required. If an incomplete application is resubmitted within 120 calendar days from the date the Department determined the application incomplete, no additional application fee will be assessed.

(3) The Department may reject an application for an authorization if:

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

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

(B) Use the land for which authorization is sought in a way that meets the provisions of these rules.

(b) The applicant is not in compliance with the terms and conditions on any other authorization granted to them by the Department.

(4) Except as provided in OAR 141-145-0030(5), the Department will notify the appropriate city or county planning department, pertinent state and federal agencies, federally recognized tribal governments, ports and all lessees and adjacent riparian property owners (as available from the local county assessor's office records) and other interested parties of the application and request review and comment. The Department may require the applicant to respond to comments where applicable.

(5) The Department may elect not to request review and comment on an application as provided in OAR 141-145-0030(4) 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.

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

(a) Approve the application and move forward with the issuance of the requested authorization.

(b) Require that the applicant modify, and as deemed necessary by the Department, resubmit the application; or

(c) Deny the application.

(7) An applicant or an affected party who submitted a timely comment on the proposed project has the right to appeal a decision under the provisions of OAR 141-145-0090.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0035

Lease Application Review and Approval Process

(1) An application for a lease shall meet the provisions of OAR 141-145-0030.

(2) Pursuant to ORS 274.040, a preference right to lease state-owned submerged and submersible lands must be offered to the adjacent riparian property owner.

(3) If the preference right holder waives the preference right, the Department will put the lease out for competitive bid pursuant to the requirements of OAR 274.040.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0040

General Terms and Conditions

(1) The following terms and conditions apply for authorizations administered under these rules.

(a) Authorizations issued by the Department will be for the minimum area determined to be required for the requested use.

(b) The Department may grant additional authorizations which, as determined by the Department, do not substantially interfere with an authorized use administered under these rules.

(c) The Department will offer access authorizations for a term up to three (3) years.

(d) Unless otherwise approved by the Director, the Department will offer leases for a term up to fifteen (15) years.

(e) Unless otherwise approved by the Director, the Department will offer easements for a term up to thirty (30) years.

(f) The Department will, upon request of the applicant, grant permanent easements only for conservation purposes or as required by a regulatory order. Requests for permanent easements will be taken to the State Land Board for review and approval.

(g) An authorization granted by the Department under these rules will generally be to a specific person for a specific use, location, and term. The holder must apply to and obtain prior written approval from the Department as provided in OAR 141-145-0025 prior to:

(A) Changing the authorized use;

(B) Expanding the number of authorized developments or uses;

(C) Changing the authorized area; or

(D) Permitting other persons to utilize the authorized area for uses and developments requiring separate authorization by the Department.

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

(i) Except as provided in OAR 141-145-0050 or as otherwise provided in the authorization, the holder of an authorization must terminate all use, and at the Department’s discretion, remove any or all structures or uses placed within the authorized use area upon expiration or cancellation of the authorization. If the holder refuses to terminate its use or remove its structures, the Department may remove them and charge the holder for doing so.

(j) The holder must defend, indemnify and hold the State of Oregon, its boards, commissions, agencies, officers, employees, contractors and agents harmless from and against any and all claims, demands, actions, judgment, losses, damages, penalties, fines, costs and expenses (including expert witness fees and costs and attorney’s fees in any administrative proceeding, mediation, trial, or appeal) arising from or attributable, in whole or in part, to the use that is the subject to the authorization, including without limitation, any such claims or costs arising from a release of a hazardous substance as a result of the authorized activity, exacerbation of existing contamination or holder’s failure to comply fully with the authorization or any order or agreement under which holder is conducting its use. This requirement will survive termination or expiration of any authorization issued under these rules.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0045

Insurance and Bond

(1) The Department may require the holder to obtain insurance in specified types and amounts if the Department determines that the proposed use presents a potential risk to other uses, to public trust uses, to public health, welfare, safety, the environment or to the State of Oregon, or if otherwise required by law. The Department shall require that the State of Oregon be named as an additional insured party in any such policy.

(2) The Department shall determine the required types and amounts of the insurance coverage the holder must obtain based on the nature and location of the use, potential risks and liabilities associated with that use, use restrictions associated with that use, any requirements of law, and any other unique aspects of the proposed use the Department determines to be relevant.

(3) The Department may, at its discretion, require that the holder obtain a surety bond or letter of credit in an amount specified by the Department or as required by law to secure performance of all terms and conditions of an authorization and performance of all terms and conditions of any order or agreement under which remedial work is being conducted.

(4) Nothing in this section shall be construed as preempting, limiting, or superseding any protections and limitations afforded to sureties under federal and state law.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0050

Special Conditions for a Soil or Sediment Cap

(1) The holder of an authorization for a soil or sediment cap must maintain cost estimates of the amount of financial assurance that is necessary for the purposes below, and demonstrate to the Department’s satisfaction that the holder has in effect the amount and form of required financial assurance, for:

(a) The costs of maintaining and monitoring of the sediment cap; and

(b) Any corrective action required by the Department or any other local, state or federal government agency with jurisdiction over the site to be taken at the site of the sediment cap.

(2) Such cost estimates and evidence of the required financial assurance must be provided in writing to the Department:

(a) Prior to the granting of the authorization; and

(b) On an annual basis to be received by the Department by January 31 of every calendar year following the granting of the authorization by the Department or, on a more frequent basis as required by the Department.

(3) The financial assurance required by OAR 141-145-0050(1) may be satisfied by any one, or a combination of the following:

(a) Insurance specific to the construction and maintenance of a soil or sediment cap;

(b) Establishment of a trust fund with cash to the required dollar amount, with the benefactor as the State of Oregon, Department of State Lands;

(c) Surety bond;

(d) Letter of credit; or

(e) Other financial assurance mechanisms as deemed acceptable by the Department.

(4) The Department will accept documented financial assurance provided by a holder through an existing order issued by the ODEQ or EPA as evidence that the requirements of this section have been met.

(5) Nothing in this section shall be construed as preempting, limiting, or superseding any protections and limitations afforded to sureties under federal and state law.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0055

Renewal of Authorizations

(1) Access authorizations and leases are eligible for renewal.

(2) The holder of an access authorization may renew for one (1) additional term.

(3) The holder of a lease may renew for additional terms.

(4) The holder of an easement may apply for a new easement prior to the expiration of the term.

(5) The holder of an access authorization or lease shall exercise the right to renew not less than 90 calendar days prior to the expiration of the then current term. If the holder fails to renew within the time required, the authorization will terminate at the expiration of the current term.

(6) To exercise the right to renew, the holder 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 existing authorization are consistent with local, state, and federal law; and

(C) Certifying that the existing uses and structures are consistent with the existing authorization.

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

(7) Upon receipt of the required information 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 authorization;

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

(c) The holder has fully complied with any other authorizations granted to them by the Department.

(8) If the Department determines that the renewal complies with the requirements of OAR 141-145-0055(5), the Department will provide written notice to the holder that the authorization has been renewed for the additional term stated in the notice.

(9) Compensation for the use of state-owned land shall be re-calculated upon renewal in accordance with in OAR 141-145-0060. Compensation shall be due prior to the issuance of the renewal.

(10) As a condition of renewal, the Department may amend the terms and conditions of the authorization at the time of renewal.

(11) If the Department determines that the renewal does not comply with the requirements of OAR 141-145-0055, the Department will provide written notice to the holder that the authorization will not be renewed. In that event, the authorization will terminate at the expiration of the current term.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0060

Compensation

(1) The compensation for an authorization for remediation necessitated by operations at an orphan site as determined by and under the management of the ODEQ or EPA shall be five hundred ($500) dollars. If at any point a party is located to perform or pay for the remediation of what had previously been designated an orphan site, that party must compensate the Department for the cost of that use of state-owned land according to these rules.

(2) The minimum compensation for any authorization issued under these rules shall be one thousand dollars ($1,000), with the following exceptions:

(a) Authorizations meeting the provisions of OAR 141-145-0060(1), and;

(b) Proposed uses determined by the Department to have a “no or minimal impact” in OAR 141-145-0060(4)(a). Uses considered to have a “no or minimal impact” in 141-145-0060(4)(a) require no compensation.

(3) Subject to the base minimum compensation established in OAR 141-145-0060(2), the method for calculating compensation due for an authorization issued under these rules shall be determined through the following formula.

COMP = AV x LA x SDI

NOTE: Formula Explanation

AV= Appraised value or assessed value (as defined in OAR 141-145-0005(3) and (4) of these rules) whichever is less except as stated in OAR 141-145-0060(7). AV is expressed as a value per square foot.

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

SDI= Defined in OAR 141-145-0005(32). SDI is expressed as a percentage in this formula.

COMP= Compensation due to the Department for the authorization.

(a) For access authorizations, compensation due to the Department for the authorization will be a one-time payment determined by the formula COMP = AV x LA x SDI.

(b) For easements, compensation due the Department for the authorization will be a one-time payment that is the lesser of:

(A) [(AV x LA x SDI)/30] x number of years authorized; or

(B) Flat rate method for a non-marine use (as described in Division 82) of $0.5301 per square foot (which will be increased each year on July 1st by three percent) x LA x number of years authorized.

(c) For conservation easements, compensation due the Department for the authorization will be a one-time payment equal to AV x LA x 50%.

(d) For lease authorizations, annual lease payment calculation is the lesser of the:

(A) AV x LA x SDI x 5%; or

(B) Flat rate method for a non-marine use (as described in Division 82) of $0.5301 per square foot (which will be increased each year on July 1st by three percent) x LA

(4) The Site Diminishment Impact percentage for an access authorization is calculated by the Department as follows:

(a) A proposed use is considered to have a “no or minimal impact” and an SDI of 0% if the Department determines:

(A) The proposed use would not impose any public trust use restrictions that last more than fourteen (14) consecutive days per calendar year, and

(B) The proposed use would not limit or constrain the Department in issuing other waterway authorizations administered under Division 82.

(b) A proposed use is considered to have a “moderate impact” and an SDI of 3.5% if the Department determines:

(A) The proposed use would impose one public trust use restriction that lasts more than fourteen (14) consecutive days, or

(B) The proposed use would limit or constrain the Department in issuing other waterway authorizations administered under Division 82.

(c) A proposed use is considered to have a “significant impact” and an SDI of 7% if the Department determines:

(A) The proposed use would impose more than one public trust use restrictions that last more than fourteen (14) consecutive days, or,

(B) The proposed use would preclude the Department from issuing any other waterway authorizations administered under division 82.

(5) The Site Diminishment Impact for an easement or lease is calculated by the Department as follows:

(a) A proposed use is considered to have “no or minimal impact” and an SDI of 1% if the Department determines that:

(A) The proposed use would not impose any public trust use restrictions that last more than fourteen (14) consecutive days per calendar year, and

(B) The proposed use would not limit or constrain the Department in issuing other waterway authorizations administered under Division 82.

(b) A proposed use is considered to have a “moderate impact” and an SDI of 50% if the Department determines that:

(A) The proposed use would impose one public trust use restriction that lasts more than fourteen (14) consecutive days, or

(B) The proposed use would limit or constrain the Department in issuing other waterway authorizations administered under division 82.

(c) An easement or lease is considered to have a “significant impact” and an SDI of 100% if the Department determines that:

(A) The proposed use would impose more than one public trust use restrictions that last more than fourteen (14) consecutive days, or,

(B) The proposed use would preclude the Department from issuing any other waterway authorizations administered under division 82.

(6) In calculating compensation under these rules, applicants may substitute an appraised value of the adjacent riparian tax lot or as determined by the Department, a comparable tax lot in place of the assessed value. The Department reserves the right to evaluate, review, and challenge the appraisal. The appraisal shall be conducted at the applicant's expense. If the appraisal is used by the Department to calculate the compensation, the Department will credit one-half of the cost of the appraisal to the applicant’s compensation. In the event of a dispute between the Department and the applicant, the value shall be determined through the three-appraiser method specified in ORS 274.929(3).

(7) If in the process of calculating compensation, the AV is found to be depressed due to the presence of hazardous substances or some other extenuating circumstance(s) as determined by the Department, another comparable upland tax lot shall be selected by the Department as the basis for calculating the compensation. The applicant may suggest a comparable tax lot or may appeal the Department's selection as allowed in OAR 141-145-0090.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0065

Assignment of Authorizations

(1) An access authorization is not assignable.

(2) The holder of an easement or lease in good standing can assign its easement or lease with prior written consent of the Department.

(3) To assign an easement or lease, the holder must submit to the Department a:

(a) Notice of proposed assignment on a form provided by the Department at least 60 calendar days prior to the date that the assignment is to occur; and

(b) Non-refundable administrative processing fee of $750, payable to the Department.

(4) The Department may reject an assignment if:

(a) The assignee’s financial status, past business, or management practices or experience indicates to the Department that the assignee may not:

(A) Be able to fully meet the terms and conditions of a lease or easement; or

(B) Be able to fully comply with all applicable terms or conditions of the Order under which remediation is being conducted, including without limitation, terms and conditions related to ongoing monitoring and maintenance, insurance, indemnification and financial assurance; or

(C) Use the land applied for in a way that is consistent with the provisions of these rules.

(b) The assignee is not in compliance with the terms and conditions on any other authorization granted to them by the Department.

(5) The Department may request additional information concerning the proposed assignment.

(6) The Department may condition the assignment on the assignor retaining responsibility for some or all of the terms and conditions in the lease or easement guaranteeing the performance of the assignee.

(7) An assignment does not take effect until the Department authorizes it in writing.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0070

Termination of Authorizations

(1) If a holder fails to comply with these rules, the terms and conditions of an authorization, or violates other laws covering the use of the authorized area, the Department shall notify the holder in writing of the default and demand correction within a specified time frame.

(2) If a holder fails to correct the default within the time frame specified, the Department may take one or more of the following actions:

(a) Modify the authorization;

(b) Terminate the authorization;

(c) Request the Attorney General to take or cause to be taken appropriate legal action against the holder.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0075

Removal of Unauthorized Structures

The Department may pursue the removal of unauthorized structures on state-owned submerged and submersible land through 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.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0080

Closure of Submerged and Submersible Land Subject to Remedial Activity or Habitat Restoration to Public Use

(1) State-owned submerged and submersible land must remain open to Public Trust Uses unless a restriction is approved by the Department or other agencies with jurisdiction over navigation or public safety.

(a) Notwithstanding the provisions of division 88, 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 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, the Oregon Marine Board and any applicable port prior to implementing the closure or restriction. Holder must 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 and the scope, and duration of the closure or restriction, and must certify that holder has consulted and received approval from the United States Coast Guard and the Oregon Marine Board regarding the closure or restriction, if required under OAR 141-145-0080(1)(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 Division 88.

(2) The Director may impose restrictions on, or close state-owned land if the Director determines that the restriction or closure is necessary to facilitate or protect any removal or remedial action undertaken by or pursuant to an order issued by ODEQ or EPA.

(3) The procedures for imposing these restrictions are set forth in OAR 141-088-0008.

(4) The State Land Board may impose restrictions on or close state-owned land if the State Land Board determines that the restriction or closure is necessary to facilitate or protect a habitat restoration project.

(5) The procedures for imposing these restrictions are set forth in OAR 141-088-0006

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0085

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 submersible lands pursuant to ORS 274.992.

(3) The Director will give written notice of a civil penalty incurred under OAR 141-145-0085(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 twenty (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 141-145-0085(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 141-145-0085 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 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 183.745(2), a civil penalty imposed under OAR 141-145-0085 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 141-145-0085, interest will accrue at the maximum rate allowed by law.

Stat. Auth.: ORS 183, 273 & 274
Stats. Implemented: ORS 274
Hist.: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14

141-145-0090

Appeals

(1) An applicant for an authorization, or any other person adversely affected by a decision by the Department under these rules 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 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, they 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 2-2014, f. 1-13-14, cert. ef. 2-1-14

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