Or. Admin. Code § 141-082-0260

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

Section 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 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 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 or vessel 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 by law or these rules. 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 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) If 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 unreasonably 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 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.

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

Or. Admin. Code § 141-082-0260

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