Current through Register Vol. 63, No. 9, September 1, 2024
(1) Upon receipt of
an application for a lease or public facility license to use state-owned
submerged and submersible land, the Department shall 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 shall 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 shall 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 shall be assessed.
(3) If more than one application for a
specific area is received by the Department, the Department shall determine
which proposed use best fulfills the general provisions specified in OAR
141-082-0260.
The Department shall 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).
(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 shall offer a preference right to lease
to the eligible party as defined in OAR
141-082-0255(64) and
(65), hereafter referred to as the preference right holder. The Department
shall 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 shall 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 shall 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 shall 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 shall 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 shall 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
shall be deemed accepted by the Department.
(f) Upon acceptance of a preference right
holder's application, the Department shall process the application as set forth
in OAR
141-082-0280(8)-(13),
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
shall be deemed to have waived the preference right and the Department shall
process the application initiating the offering of the preference right as set
forth in OAR 141-082-0280(7)-(13), below.
(7) If the preference right holder waives the
preference right, the Department shall 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
shall 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 shall be awarded the right to lease, subject to compliance with
the provisions of these rules.
(c)
Following the closing of bids, the Department shall 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 shall 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 shall be deemed accepted by the Department. Upon acceptance of
the application, the Department shall process the application as set forth in
OAR
141-082-0280(8)-(13),
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 shall 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 shall 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)(c).
(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(10),
the Department shall 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) of the application and request
review and comment. The Department may require the applicant to respond to
comments where applicable.
(9) The
Department may provide notice of an application and opportunity to comment at a
local government building, public library, or other appropriate locations in
order to ensure that minority and low-income communities are included and aware
of a proposed use. The Department shall make paper copies of an application
available to any person upon request.
(10) The Department shall 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.
(11) Based on
the evaluation of the application and the comments received, the Department
shall:
(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.
(12) The Authorized Area shall include all
state-owned submerged and submersible lands not available for public trust uses
including the area between moorage slips, boat wells and all gangways; except
those uses qualifying as a registration.
(13) 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 applicant will be responsible
for any costs of the survey.
Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS
274
