Or. Admin. Code § 141-082-0255

Current through Register Vol. 63, No. 12, December 1, 2024

Section 141-082-0255 - Definitions

(1) "Abandoned Structure" means a structure that has been left without authorization on, under or over state-owned submerged or submersible lands.

(2) "Abandoned Vessel" means a vessel that has been left without authorization on public or private land, the waters of this state, or any other water.

(3) "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 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.

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

(5) "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 submersible land.

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

(7) "Applicant" is any person applying for a waterway use authorization.

(8) "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 674.100(2)(h).

(9) "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.

(10) "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.

(11) "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.

(12) "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 submersible land for a specific purpose for a fixed period of time.

(13) "Authorized Area" is the area of state-owned submerged and submersible land defined in the waterway use authorization for which a use is authorized.

(14) "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.

(15) "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.

(16) "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.

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

(18) "Commercial Use" means an activity conducted on, within, or over state-owned submerged and 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.

(19) "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.

(20) "Consent Agreement" is a document used when rights under a Waterway Use Authorization are held as collateral for repayment of a loan. The Department of State Lands must authorize the agreement prior to final loan approval.

(21) "Department" means the Department of State Lands.

(22) "Derelict Structure" means a structure that is on, under or over state-owned submerged or submersible lands and that is:

(a) Sunk or in imminent danger of sinking due to its dilapidated condition;

(b) Obstructing a waterway;

(c) Endangering life or property; or

(d) In dilapidated condition such that it is in danger of becoming an environmental hazard as evidenced by instances of leaking fuel, sewage or other pollutants.

(23) "Derelict Vessel" means a vessel that is on the waters of this state and that is:

(a) Sunk or in imminent danger of sinking;

(b) Obstructing a waterway;

(c) Endangering life or property; or

(d) In such a dilapidated condition that it is in danger of becoming a significant environmental hazard as evidenced by repeated and documented instances of leaking, fuel, sewage or other pollutants.

(24) "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.

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

(26) "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 may be used for a recreational purpose such as a viewing platform or sunbathing deck.

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

(28) "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.

(29) "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.

(30) "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.

(31) "Floating Home" means a moored floating structure that is used as a dwelling.

(32) "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.

(33) "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.

(34) "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.

(35) "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.

(36) "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.

(37) "Historical Vessel" or "Historical Structure" is a vessel or structure listed or eligible for listing on the National Register of Historic Places as determined by the State Historic Preservation Office. In addition, these structures or vessels are owned by non-profit organizations for which their primary purpose is youth-oriented, historical, educational, or scientific purposes.

(38) "Holder" is the person who has been issued a waterway use authorization under these rules.

(39) "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.

(40) "Industrial Use" means an activity conducted on, under, within, or over state-owned submerged and 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.

(41) "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.

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

(43) "Limited Duration Use" means any temporary or infrequent use of state-owned waterways, with no long term or extended use intended. Limited Duration Use includes any commercial use of state-owned submerged or submersible land which is not more than a fourteen (14) consecutive day period in any one (1) location. Commercial use may include, but is not limited to, barge staging to facilitate movement of goods and services. For purposes of this section, "location" means, for example, an area necessary to moor at a dolphin or piling that is used by a vessel as it temporarily stops on its passage to its final location to off-load goods and services. Limited Duration Use also includes any non-commercial use of state-owned submerged or submersible land which is not more than thirty (30) calendar days during any contiguous 12-month time period, within a distance of five miles.

(44) "Limited Service Restaurant" means a business serving only pre-wrapped or pre-prepared food products, and nonperishable beverages as defined in ORS 624.010(5).

(45) "Line of Ordinary High Water" as defined in ORS 274.005(3), means the line on the bank or shore to which the high water ordinarily rises annually in season.

(46) "Line of Ordinary Low Water" as defined in ORS 274.005(4), means the line on the bank or shore to which the low water ordinarily recedes annually in season.

(47) "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.

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

(49) "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.

(50) "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.

(51) "Marine Debris" means any manufactured or processed solid material that:

(a) Persists in the marine environment; and

(b) Is disposed of or abandoned, either with intention or unintentionally, in any waters of which the submersible or submerged lands belong to the State of Oregon.

(52) "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; used for industrial uses such as vessel repair facilities; aquaculture facilities; sea water desalination, mineral extraction, and processing facilities.

(53) "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.

(54) "Multi-Family Dock" means a non-commercial dock, maintained and owned in common by two or more 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.

(55) "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.

(56) "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: multi-family residences, hotels, motels, residences, restaurants, offices, retail stores, manufacturing plants, and warehouses.

(57) "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."

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

(59) "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.

(60) "Owner" means a person who has a property interest in a structure or vessel.

(61) "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.

(62) "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.

(63) "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.

(64) "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.

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

(66) "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.

(67) "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.

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

(69) "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.

(70) "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.

(71) "Recreation Area" means an area of an authorized structure dedicated to day use recreation.

(72) "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.

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

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

(75) "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(9)(10).

(76) "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.

(77) "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.

(78) "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.

(79) "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 a waterway use authorization. Structures include boat houses, floating homes and other structures secured to a pier or piling; except vessels, it cannot be both.

(80) "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.

(81) "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.

(82) "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.

(83) "Temporary Restaurant" means the same as ORS 624.010.

(84) "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.

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

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

(87) "Vessel" means a boat or small vehicle that is used for traveling on water. A vessel is not a structure as defined in this subsection (79) above.

(88) "Voluntary Habitat Restoration Work" means the same as set forth in ORS 274.043(5)(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.

(89) "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.

(90) "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.

(91) "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.

Or. Admin. Code § 141-082-0255

DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13; DSL 5-2016, f. 11-3-16, cert. ef. 1/1/2017

Stat. Auth.: ORS 183, 273, 274

Stats. Implemented: ORS 274