OAR Chapter 141 — Department of State Lands

Division 1 PROCEDURAL RULES

Or. Admin. R. 141-001-0000 Notice of Proposed Rule

The purpose of this rule is to provide a reasonable opportunity for interested persons to be notified of the proposed actions of the State Land Board and/or the Department of State Lands. Prior to the adoption, amendment, or repeal of any rule, the State Land Board and/or the Department of State Lands will give notice of the proposed adoption, amendment, or repeal:

(1) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days prior to the effective date;

(2) By e-mailing or mailing a copy of the notice to persons on the State Land Board's and/or Department of State Lands' mailing list established pursuant to ORS 183.335(8) at least 28 days prior to effective date;

(3) By mailing a copy of the notice to persons referred to in ORS 183.335(15) at least 49 days before the effective date;

(4) By mailing or e-mailing a copy of the notice to The Associated Press and to any interested parties identified as being specifically affected by the rulemaking, including cities, counties, other government agencies, organizations or business associations.

History

Statutory/Other Authority: ORS 183
Statutes/Other Implemented: ORS 183.341 & 273.045
DSL 2-2020, minor correction filed 02/20/2020, effective 02/20/2020
DSL 6-2008, f. & cert. ef. 12-10-08
DSL 4-2005, f. 11-3-05, cert. ef. 11-15-05
DSL 3-2005(Temp), f. 5-18-05, cert. ef. 5-19-05 thru 11-15-05
LB 32, f. & ef. 11-18-75

Or. Admin. R. 141-001-0005 Model Rules for Rulemaking

Pursuant to ORS 183.341, the Department of State Lands and the State Land Board adopt by reference the Attorney General's Model Rules for Rulemaking (OAR 137-001) in effect January 1, 2023.

History

Statutory/Other Authority: ORS 183.341 & ORS 273.045
Statutes/Other Implemented: ORS 183.333 & ORS 183.341
DSL 3-2023, amend filed 10/13/2023, effective 10/13/2023
DSL 6-2008, f. & cert. ef. 12-10-08
DSL 4-2005, f. 11-3-05, cert. ef. 11-15-05
DSL 3-2005(Temp), f. 5-18-05, cert. ef. 5-19-05 thru 11-15-05
DSL 3-2002, f. & cert. ef. 4-24-02
DSL 7-1998, f. & cert. ef. 7-15-98
LB 1-1994, f. & cert. ef. 4-13-94
LB 2-1992, f. & cert. ef. 6-15-92
LB 4-1989, f. & cert. ef. 7-25-89
LB 4-1983, f. & ef. 12-23-83
LB 1-1982, f. & ef. 2-25-82
LB 1-1980, f. & ef. 2-20-80
LB 2-1978, f. & ef. 4-20-78
LB 35, f. & ef. 1-6-76
LB 13, f. 1-21-74, ef. 2-11-74
LB 10, f. 11-15-71, ef. 12-1-71

Or. Admin. R. 141-001-0007 Model Rules of Procedures for Contested Case Hearings

Pursuant to ORS 183.341, The Department of State Lands and the State Land Board adopt by reference the Attorney General’s Model Rules of Procedures for Contested Cases (OAR 137-003) in effect January 1, 2023.

History

Statutory/Other Authority: ORS 183.341 & ORS 273.045
Statutes/Other Implemented: ORS 183.333 & ORS 183.341
DSL 3-2023, adopt filed 10/13/2023, effective 10/13/2023

Or. Admin. R. 141-001-0010 Contested Case Hearings

Procedures for contested case hearings for the Department of State Lands are provided in the Model Rules of Procedure, OAR 137-003-0501 to 137-003-0700 by the Office of Administrative Hearings. The rules in this division (001) are subject to the approval of the Attorney General and are intended to supplement the Model Rules of Procedure providing additional guidance for conduct of contested case hearings. An officer or employee of the Department is authorized to appear on behalf of the agency with the following restrictions in hearings conducted before another agency:

(1) The agency representative may not make legal argument on behalf of the agency.

(2) Legal argument as used in ORS 183.452(3) and this rule has the same meaning as in OAR 137-003-0008(1)(c) and (d).

(3) When an agency officer or employee represents the agency, the presiding officer will advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. Where such objections involve legal argument, the presiding officer will provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after conclusion of the hearing.

History

Statutory/Other Authority: ORS 183.413 - 183.470
Statutes/Other Implemented: ORS 183.341 & 273.045
DSL 6-2008, f. & cert. ef. 12-10-08
LB 1-1995, f. & cert. ef. 2-15-95

Or. Admin. R. 141-001-0020 Model Rule for Mediation Confidentiality

Pursuant to ORS 183.341 and ORS 36.224, the Department of State Lands and the State Land Board adopt by reference the Attorney General’s Model Rule for Mediation Confidentiality (OAR 137-005-0052) in effect January 1, 2023.

History

Statutory/Other Authority: ORS 36.224, ORS 183.341 & ORS 273.045
Statutes/Other Implemented: ORS 36.224, 36.228, 36.230 & 36.232
DSL 3-2023, amend filed 10/13/2023, effective 10/13/2023
DSL 6-2008, f. & cert. ef. 12-10-08
DSL 4-2005, f. 11-3-05, cert. ef. 11-15-05
DSL 3-2005(Temp), f. 5-18-05, cert. ef. 5-19-05 thru 11-15-05

Division 5 NOTICE OF MEETINGS OF THE STATE LAND BOARD

Or. Admin. R. 141-005-0000 Definitions

(1) “Regular Meeting” means any convening of the board, other than a special meeting, emergency meeting, or executive session, to conduct normal business, make decisions, or deliberate toward a decision on any matter.

(2) “Special Meeting” means a convening of the board to make decisions or deliberate toward a decision on any matter requiring attention prior to the next regular meeting of the board, but not in less than 24 hours.

(3) “Emergency Meeting” means a convening of the board to deliberate or make decisions on any matter requiring attention in less than 24 hours.

(4) “Executive Session” means any meeting or part of a meeting of the board that is closed to members of the public, other than members of the press or other reporters in accordance with and as provided by OAR 141-005-0040.

History

Statutory/Other Authority: ORS 273.035(1)
Statutes/Other Implemented: ORS 273.035
LB 1-1990, f. & cert. ef. 3-19-90

Or. Admin. R. 141-005-0005 Regular Meetings

(1) The Regular meetings of the State Land Board shall be scheduled on a date, and held at a time and location acceptable to the Board members.

(2) Proper Notice of regular meetings shall consist of:

(a) Personal Notice to each member of the board at least six days prior to the meeting or rescheduled regular meeting;

(b) Public Notice at least six days prior to the regular meeting date, as follows:

(A) Notices by mail to wire services and to newspapers, radio, and television stations who have requested to be notified;

(B) Press releases as appropriate to other wire services, newspapers, radio and television stations;

(C) Notice by mail to any person or organization on a mailing list maintained for notice purposes pursuant to ORS 192.640;

(D) Notice by mail to any person who has asked to be advised when a particular matter will be considered by the board.

(3) The Notice shall contain a copy of the agenda of the meeting or a summary of the matters to be considered at the meeting. However, this shall not limit the ability of the board to consider additional subjects.

History

Statutory/Other Authority: ORS 192 & 273.035(1)
Statutes/Other Implemented: ORS 273.035
LB 1-1990, f. & cert. ef. 3-19-90, Renumbered from 141-005-0000
LB 2-1987, f. & ef. 5-6-87, Renumbered from 141-010-0100
LB 11, f. 10-12-73, ef. 11-11-73
LB 1-1990, f. & cert. ef. 3-19-90

Or. Admin. R. 141-005-0010 Cancellation of a Meeting

If there is sufficient time, notice of cancellation of a meeting for which notice has been given shall be given to the same parties and in the same manner as was the notice of the scheduled meeting. If unforeseen circumstances preclude timely notice of cancellation in such a manner, notification shall be given by means reasonably calculated to give actual notice of cancellation.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 273.035
LB 2-1987, f. & ef. 5-6-87, Renumbered from 141-010-0105
LB 11, f. 10-12-73, ef. 11-11-73

Or. Admin. R. 141-005-0020 Special Meetings

(1) A special meeting of the State Land Board may be called at any time by the Governor or by a majority of the members of the board.

(2) Notice shall be given to members of the board at least 24 hours prior to the special meeting. Interested persons, wire services, newspapers, radio and television stations, and the general public shall be given notice 24 hours before the special meeting by means reasonably calculated to give actual notice under the circumstances.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 273.035
LB 2-1987, f. & ef. 5-6-87, Renumbered from 141-010-0110
LB 11, f. 10-12-73, ef. 11-11-73

Or. Admin. R. 141-005-0030 Emergencies

In case of an emergency, a meeting of the State Land Board may be canceled, or a meeting may be held upon such notice as is appropriate and reasonable under the circumstances.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 273.035
LB 2-1987, f. & ef. 5-6-87, Renumbered from 141-010-0115
LB 11, f. 10-12-73, ef. 11-11-73

Or. Admin. R. 141-005-0040 Executive Sessions

An executive session of the board may be held during a regular, special, or emergency meeting when authorized under ORS 192.660, after identifying the specific authorization for holding the executive session. When an executive session only is to be held as a regular, special or emergency meeting, notice shall be given to the members of the board, interested persons, wire services, newspapers, radio and television stations as appropriate for a special, emergency, or regular meeting. The notice shall state the specific provision of law authorizing the executive session.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 273.035
LB 2-1987, f. & ef. 5-6-87

Or. Admin. R. 141-005-0050 Authority to Change or Cancel a Meeting or to Call a Special or Emergency Meeting

The Director of the Department of State Lands, acting under the direction of the Governor, in the case of a special meeting, or a majority of the members of the State Land Board, may cancel a meeting of the board, call a special or emergency meeting of the board, or make changes in the time or place of regular meetings of the board, as provided in these rules.

History

Statutory/Other Authority: ORS 192 & 273.035(1)
Statutes/Other Implemented: ORS 273.035
LB 1-1990, f. & cert. ef. 3-19-90
LB 2-1987, f. & ef. 5-6-87, Renumbered from 141-010-0120
LB 11, f. 10-12-73, ef. 11-11-73

Or. Admin. R. 141-005-0060 Responsibility for Notices

The Director of the Department of State Lands shall be responsible for the giving of all notices required by these rules.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 273.035
LB 2-1987, f. & ef. 5-6-87, Renumbered from 141-010-0125
LB 11, f. 10-12-73, ef. 11-11-73

Division 10 GENERAL

Or. Admin. R. 141-010-0005 Definitions

“Board” means the State Land Board.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0010 Sealed Bids Required

The leasing of offshore tracts for the production of oil, gas, and sulphur shall be by sealed bids. Bids shall be submitted on forms supplied by the Board, or image copies thereof. To be considered, bids shall be received at the Department of State Lands, 775 Summer St. NE, Ste. 100, Salem, OR 97301-1279, before the time designated in the public notice of the offer to lease.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0015 Lease Map

Reference to the tract number as designated on the official lease map adopted by the Board on January 3, 1964, and any subsequent revisions shall constitute sufficient description for bidding and leasing purposes. The successful bidder will assume full responsibility for any location surveys to determine precise boundaries of the tracts offered for lease. Copies of the official lease map may be inspected at the Board office or may be purchased for $15 per copy. No bid for less than a full tract, as delineated on the official lease map, will be considered. For the purposes of computing the annual rental of each leased tract, the acreage shown on the official lease map shall be used.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0020 Bidding Procedure

(1) When a bid or bids are submitted in person to the Board, name and address of the bidder and the number of tract bid on shall be designated on the envelope sealing each bid.

(2) When a bid or bids are submitted by mail, each bid shall be placed in a separate sealed envelope with the name and address of the bidder and the number of the tract identified on the outside of each separate bid envelope. The bid envelope or envelopes shall then be placed into a larger envelope, addressed and forwarded to the Board with the notation on the outer envelope that it contains a sealed bid or bids.

(3) Unless the tract is withdrawn from bidding, or unless the Board refuses all bids upon a particular tract, the lease shall be awarded to the bidder offering the highest cash bonus bid. In the event the highest bids are tie bids, tie bidders may file with the Board within 15 days after notification an agreement to accept the lease jointly; otherwise, all bids will be rejected.

(4) No variation shall be made in the prescribed form of the bid, and the insertion of any condition, qualification, or provisions of said form will invalidate the bid. The amount of cash bonus offered shall be stated in the designated place on the bid form and a certified or cashier’s check made payable to the State of Oregon in an amount sufficient to cover the first year’s rental in advance, plus 1/5 of the amount of cash bonus offered, plus $100 fee to cover the cost of advertisement shall be enclosed with the bid.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7, f. & ef. 10-22-64
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0025 Authorization

Bids submitted by corporations or partnerships shall contain an affidavit or a certificate of authority verifying that the company official, agent, or partner signing the lease and bid offer is duly authorized to enter into such a contract for the bidder.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7, f. & ef. 10-22-64
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0030 Financial Statement

A certified financial statement establishing to the satisfaction of the Board the bidder’s financial ability to undertake and fulfill all obligations under the prospective lease must accompany the bid. The findings of the Board as to whether the bidder has the financial ability to undertake and fulfill all obligations under the prospective lease shall be final and conclusive.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7, f. & ef. 10-22-64
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0035 Refund

Checks enclosed with the bids will be returned to the bidders upon request, except in the case of the successful bidder. Such requests are to be submitted on a form supplied by the Board. The execution of a request for refund shall be determined a withdrawal of the bidder’s offer and a waiver of all rights the bidder may have in connection with or by virtue of said bid.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0040 Forms

Form SLB1, 10-21-64. Bid Form; Oil, Gas and Sulphur Lease; and Form SLB2, 10-21-64, Request for Return of Deposit, copies of which are attached hereto and by this reference made a part hereof, are hereby adopted and prescribed by the State Land Board.

[Publications: Publications referenced are available from the agency.]

[ED. NOTE: Forms referenced are available from the agency.]

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7, f. & ef. 10-22-64
LB 6, f. & ef. 9-17-64

Or. Admin. R. 141-010-0201 Authority and Purpose

(1) These rules are adopted under authority of ORS 274.705–274.860 relating to exploration and development of offshore oil, gas and related sulphur resources. These rules do not apply to offshore exploration of hard minerals or to scientific research sponsored by academic institutions.

(2) It is the purpose of these rules to provide a uniform procedure for issuing non-exclusive permits to survey state-owned submerged and submersible lands by geological and geophysical (including seismic) methods to determine the potential of such lands for development of oil, gas and sulphur resources. Issuance of a permit under these rules does not confer any leasing rights or preferences in or to the subject property and does not affect requirements that the permittee obtain any other applicable regulatory permits from the Department of State Lands, or other agencies.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0205 Definitions

(1) “Applicant” — Person who submits an application for a permit under these rules.

(2) “Aggrieved Person” — Any person who has submitted comments on an application pursuant to OAR 141-010-0230, and who objects to issuance of a permit or any terms or conditions of the permit.

(3) “Board” — State Land Board.

(4) “Director” — Director of the Department of State Lands.

(5) “Department” — Department of State Lands.

(6) “Exploration” — Geological or geophysical surveys conducted pursuant to these rules.

(7) “Geological Surveys” — Use of grab samples, geochemical sampling, and similar geological techniques to obtain information and data on oil, gas or sulphur resources.

(8) “Geophysical Surveys” — Use of magnetic, gravitational, seismic, and similar geophysical techniques to obtain information and data on oil, gas or sulphur resources. Seismic techniques include, but are not limited to, use of sparkers and acoustical pulse generators. For purposes of these rules, seismic does not include the use of explosives.

NOTE: Under ORS 274.735 - 274.745, the director is authorized to issue permits for “geological, geophysical and seismic” surveys. As indicated in these definitions, seismic surveys are a form of geophysical surveys and are intended to be included in any reference to geophysical surveys.

(9) “Nearshore” — Tidal submerged lands (see OAR 141-010-0205(12)) and all state-owned submerged and submersible lands lying west of a line ten miles easterly of the 124th Meridian, and the waters above them.

(10) “Permittee” — Holder of a permit issued under these rules.

(11) “Person” — A natural person, corporation, association, firm, partnership, joint stock company, quasi-public corporation, political subdivision, and governmental agencies or instrumentalities.

(12) “Tidal Submerged Lands” — Lands lying below the line of Mean Low Tide in the beds of all tidal waters within the boundaries of this state as heretofore or hereafter established.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0210 Permit Requirement and Jurisdiction

(1) A permit is required to conduct any geological or geophysical survey on lands subject to these rules. Lands subject to these rules include tidal submerged lands and all state-owned submerged and submersible lands lying west of a line ten miles easterly of the 124th Meridian (see ORS 274.710).

(2) No permit shall be issued under these rules for surveys using dynamite, TNT, or other forms of explosives.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0215 Permit Regions

(1) For purposes of these rules, the lands subject to permits are divided into five regions, as described below:

(a) Region I: from the Oregon-California Border to Cape Blanco;

(b) Region II: from Cape Blanco to Cape Perpetua;

(d) Region IV: from Cape Falcon to the Oregon-Washington border;

(e) Region V: the Columbia River from its mouth to a line 10 miles east of the 124th Meridian.

(2) If survey activities are proposed by a single applicant for more than one Region, separate applications and fees must be submitted for each Region.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0220 Permit Application

A permit application shall be submitted on a form provided by the Department and shall include the following:

(1) The name and address of the applicant;

(2) The name and registration number of the vessel(s) to be used in conducting the proposed survey if known at the time of application (if the particular vessel is not known at the time of application, the applicant shall provide the name of the vessel at or before the time notice is given under OAR 141-010-0250);

(3) Identification of the region and specific site(s) proposed for survey (if specific survey sites are unknown at the time of application, such information shall be provided at or before the time notice is given under OAR 141-010-0250);

(4) If the area is subject to a current oil and gas, or other submerged/submersible land lease, evidence of written notice to the lessee of the permit application;

(5) A description of the type of survey to be conducted, including the techniques to be used;

(6) An application fee of $500;

(7) Any other information specified by the director.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0230 Permit Review Process

(1) Within ten working days after receipt of a completed application, the Department shall:

(a) Circulate the application for review and comment to:

(A) The Department of Fish and Wildlife;

(B) The Department of Geology and Mineral Industries;

(D) The State Historic Preservation Officer;

(E) Any other state agency the director determines may be affected by the proposed survey.

(b) Provided written notice of the application to:

(A) The governing body of each county within the proposed survey region;

(B) Any person who has requested notice from the director of permit applications;

(2) Comment by state agencies:

(a) Within ten working days after the date an application is circulated by the Department, a state agency may request the Department, to obtain additional information from the applicant. The Department shall forward the request to the applicant and shall forward a copy of the response to the requesting agency;

(b) When additional information is requested, the agency shall have 20 working days after the date the additional information is forwarded by the Department in which to submit written comments and recommendations for permit conditions, if any;

(c) When additional information is not requested, the agency shall have 20 working days after the date the application is circulated in which to submit written comments and recommendations for permit conditions, if any.

(3) Comment by other than state agencies:

(a) Persons other than state agencies shall have 30 days after the date of notice of the application in which to submit written comments to the Department;

(b) Within 15 days of publication of the notice, as required in subsection (1)(b)(C), any person may request a public hearing on the application. A request for hearing shall be submitted to the director, in writing. The director shall have discretion to decide whether a public hearing shall be held. If held, the public hearing shall take place within 15 days of receipt of the written request. The director shall provide appropriate public notice of the hearing.

(4) Within 20 working days from the close of the comment periods provided in section (3) of this rule, the Department shall:

(a) Review the comments;

(b) Take action on the application request; and

(c) Give written notice of the action to the applicant and each state agency and person who has submitted written comments on the application.

(5) Within ten working days of the date of notice of action on the application, the applicant or any aggrieved person may request a hearing from the director:

(a) The request shall be in writing and shall state the specific nature of the objection;

(b) When requested by the applicant, the hearing shall be scheduled within 45 days of the written request;

(c) When requested by a person other than the applicant, the director shall have discretion to decide whether a hearing shall be held. If held, the hearing shall take place within 45 days of receipt of the request. The applicant shall have the opportunity to participate as a party in the hearing;

(d) The hearing shall be conducted as a contested case hearing and shall be subject to the applicable provisions of ORS 183.413–183.497;

(e) A final order shall be issued by the director within 20 working days of the close of the hearing record.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0235 Land Use Review

(1) Before taking action on any permit application, the director shall determine whether the proposed activity affects land use and if so, complies with applicable provisions of the Oregon Statewide Planning Goals adopted by the Land Conservation and Development Commission. Of particular concern are Statewide Planning Goal 16, relating to estuaries, and Goal 19, relating to ocean resources:

(a) The director shall determine that a proposed activity affects land use, and is therefore subject to applicable Statewide Planning Goals, when the activity is reasonably likely to have a significant impact on uses of the nearshore for fishing, navigation, recreation or aesthetic purposes, or on long-term protection of renewable resources;

(b) In determining whether a proposed activity affects land use, the director shall consider:

(A) Duration or frequency of the activity;

(B) Extent of impacts;

(D) Timing or scheduling of the activity;

(E) Location in relation to sensitive resources;

(F) Potential for conflicts with other uses.

(2) If the director finds a proposed activity affecting land use does not comply with any applicable goal provision, the director shall deny the permit or impose appropriate conditions to assure goal compliance.

(3) In developing such findings or conditions, the director may rely on the written findings of other affected state agencies, such as the Department of Fish and Wildlife, the Department of Geology and Mineral Industries, and the Department of Land Conservation and Development.

(4) In responding to the inventory requirements of Statewide Planning Goals 16 and 19, the director may rely on existing available data and studies. Survey results obtained by the director pursuant to OAR 141-010-0270 shall be used to expand and update the inventories.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0240 Term

The permit period shall not exceed two years. If circumstances have not materially changed, the permit may be renewed for like periods upon application to the Department and upon showing due compliance with the original permit and applicable laws and regulations. Renewal applications shall be submitted to the Department at least 90 days before the expiration of the permit.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0250 Notice

(1) At least 15 days before commencing a survey, the permittee shall provide notice as follows:

(a) For all surveys, written notice of the specific survey site, including tract lines (if applicable), method of operation, vessel name, and contact person on board the vessel to the Department, Department of Fish and Wildlife, Department of Geology and Mineral Industries, and any other state agencies specified in the permit. The director shall take action on the notice as provided in OAR 141-010-0260(2)(k).

(b) For surveys involving towed cables or equipment, public notice by publication in a newspaper of general circulation in the survey region, and posted notice at various waterfront locations within the survey region, such as bait shops, fuel docks and the harbormaster’s office.

(2) The posted and public notice shall include, but not be limited to, the following information:

(a) The general area of the survey, including the survey boundaries, the date(s) on which activities will occur, and the hours of operation;

(b) The methods of survey, including length, width and depth of cable and equipment in tow, if applicable;

(d) The name and address of the permittee and the name and phone number of a local contact person;

(e) A statement that additional information may be obtained from the permittee or the Department.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0260 Permit Conditions

(1) In issuing a permit, the director shall include conditions proper to safeguard the interests of the state.

(2) Each permit shall include, but not be limited to, the following minimum conditions:

(a) The permittee shall provide and maintain until the termination of the permit a faithful performance bond or cash deposit in the amount of $25,000. The state reserves the right to approve the surety company. Approval shall not be unreasonably withheld. The bond shall be in favor of the State of Oregon acting by and through the Department of State Lands. The bond shall guarantee the faithful performance by the permittee of the permit and all applicable statutes and rules promulgated thereunder. The bond shall require the surety to give at least 90 days’ written notice of its intention to cease acting as guarantor. If a surety gives notice of its intention to cease acting as guarantor, the permittee shall provide to the state within 60 days of such notice a replacement bond or cash deposit of equal value to become effective upon the expiration of the existing bond;

(b) The permittee shall furnish a certificate of insurance or self-insurance showing that, at all times throughout the life of the permit, the permittee and all of its subcontractors and agents are insured for personal injury and property damage to third persons resulting from operations under the permit. The insurance shall include coverage for damage caused by pollution or contamination whether occurring suddenly and accidentally or over a period of time. The insurance shall be for an amount not less than $1,000,000 for each occurrence. The insurance company or self-insurance program shall be subject to approval by the State. Approval shall not be unreasonably withheld. The required coverages shall include the State of Oregon as an additional insured. The certificate of insurance or self-insured plan shall contain a 30 day notice of cancellation or material change;

(d) Before commencing a survey, the permittee shall visually observe the area around the vessel and shall begin survey activities only when no whales are observed within two miles. For surveys occurring between April 15 and July 31 in the following locations, permittee shall also observe for Steller sea lions, and shall not begin the survey if Steller sea lions are observed within two miles:

(A) Orford Reef (42°46'30" North Latitude to 42°47'40" North Latitude; 124°35'30" West Longitude to 124°36'40" West Longitude);

(B) Rogue Reef (42°26'40" North Latitude to 42°28'00" North Latitude; 124°28'00" West Longitude to 124°30'30" West Longitude);

(C) Upon evidence satisfactory to the Oregon Department of Fish and Wildlife that there are no adverse impacts to Steller sea lions as a result of geological or geophysical surveys, the director may delete this permit condition.

(e) Before commencing a survey, the permittee shall attempt to communicate to all vessels in the path and vicinity of the survey vessel:

(A) The name of the survey vessel;

(B) The radio call signals and monitoring channel;

(D) The name of the contact person on board the survey vessel.

(f) Surveys shall be conducted in compliance with all terms and conditions of the permit, and all federal, state, and local laws and administrative rules which are applicable to such operations;

(g) Surveys shall be conducted so that activities do not:

(A) Endanger or unreasonably interfere with operations under any lease issued by the Department;

(B) Cause substantial harm or damage to aquatic life;

(D) Endanger or unreasonably interfere with other uses in the area; or

(E) Destroy or damage historical or cultural resources identified in the permit.

(h) The permittee shall immediately cease operations which create a threat of serious harm or damage to life (including fish and other aquatic life), property, mineral deposits, or marine, coastal, or human environments;

(i) The permittee shall submit reports on permit operations in accordance with OAR 141-010-0270;

(j) The permittee shall indemnify and hold harmless the State of Oregon, its officers, agents, employees, and members from all claims, suits, or actions, of whatsoever nature, resulting from or arising out of activities of the permittee, or its subcontractors, agents, or employees, under this permit;

(k) Upon receipt of site specific information under the notice provisions of OAR 141-010-0250, the director may amend any condition of the permit or impose additional conditions to mitigate site specific adverse impacts or use conflicts, if any. If the director determines there are adverse impacts or use conflicts which cannot be satisfactorily mitigated by permit conditions, the director may deny permission to survey in a particular location. The director shall provide written notice of amended and additional permit conditions, or denial of permission to survey within ten days after receipt of the site specific information. The notice shall contain specific reasons for the director’s action. Within ten days of such notice, permittee may request a contested case hearing as provided in ORS 183.413–183.497;

(l) A permit is nonexclusive and does not give a preference right to any oil, gas and sulphur or other mineral lease, nor does it grant the permittee the right to conduct drilling or development activities for oil, gas, sulphur or any minerals.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0270 Reporting

(1) If requested by the director, the permittee shall submit to the Department monthly status reports during periods of active survey operations. The reports shall be in a form approved or prescribed by the Department.

(2) If requested by the director, the permittee shall submit to the Department a final report of the survey activities. The final report shall contain:

(a) A description of the work performed;

(b) Charts, maps, or plats depicting the areas in which survey activities were conducted, specifically identifying the tract lines where surveying occurred, and including a reference sufficient to identify the data produced during each activity;

(d) A narrative summary of any adverse effects of the survey activities on environment, aquatic life, cultural resources, or other uses of the area in which the activities were conducted;

(e) Interpretable geological and/or geophysical data, collected pursuant to these rules and processed in the normal course of permittee’s operations, and unused core samples or splits (the director may request such data, samples or splits at any time within five years after completion of the survey);

(f) Such other descriptions of the activities as may be specified by the Department, after consulting with the Department of Geology and Mineral Industries, the Department of Fish and Wildlife, and other affected state agencies.

(3) Reports and samples shall be forwarded by the Department to the Department of Geology and Mineral Industries for data analysis and maintenance of records to facilitate future survey decisions or for other purposes consistent with the statutory authority of the Department.

(4) Report information relating to survey impacts on aquatic life or habitat shall be forwarded to the Department of Fish and Wildlife.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0280 Confidentiality

All proprietary information submitted by an applicant or permittee pursuant to these rules shall be treated as confidential trade secrets under ORS 192.500(1)(b) and shall not be disclosed to the public unless released by the permittee. Proprietary information includes, but is not limited to, the exact location of a survey and survey results.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Or. Admin. R. 141-010-0290 Inspection, Enforcement, Cancellation of Permit

(1) Upon request by the director, a permittee shall provide food and quarters for a representative of the director to observe and inspect survey activities onboard the survey vessel.

(2) Upon oral or written notice to the permittee, the director, or onboard representative of the director, may suspend a permit upon a finding that:

(a) There is a threat of serious damage to life (including fish and other aquatic life), property, mineral deposits, or marine, coastal or human environment; or

(b) The permittee has violated any terms or conditions of the permit.

(3) Such suspension shall be effective immediately upon notice.

(4) Oral notice of permit suspension shall be followed by written notice confirming the action.

(5) A suspension shall remain in effect until the basis for the suspension has been corrected to the satisfaction of the director or onboard representative. If such corrective action has not occurred within 30 days of the suspension, the director may permanently revoke the permit by written notice to the permittee stating the specific grounds for revocation. Within ten days of such notice, the permittee may request a contested case hearing, as provided in ORS 183.413–183.497.

History

Statutory/Other Authority: ORS 274
Statutes/Other Implemented: ORS 274.735
LB 7-1986, f. & ef. 7-18-86

Division 14 RULES FOR AUTHORIZING LEASES AND LICENSES FOR THE REMOVAL OR USE OF ROCK, SAND, GRAVEL AND SILT DERIVED FROM STATE-OWNED SUBMERGED AND SUBMERSIBLE LAND

Or. Admin. R. 141-014-0200 Purpose and Applicability

These rules:

(1) Govern the granting of leases and licenses for the removal or use of:

(a) Rock, sand, gravel and silt derived from state-owned submerged and submersible land (hereafter referred to as “material”); and

(b) State-owned dredged material that has been placed on either land controlled by the Department of State Lands (hereafter referred to as “Department”) or land belonging to another person.

(2) Describe when compensation is due to the Department for the removal or use of material.

(3) Are in addition to other rules that may also be applicable to the removal or use of material such as Division 85 (Administrative Rules Governing the Issuance and Enforcement of Removal-Fill Authorizations Within Waters of Oregon Including Wetlands).

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274.525 & 274.550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0210 Definitions

(1) "Applicant" is any person applying for an authorization to remove or use material, or the successful bidder at an auction prior to final lease execution.

(2) "Article of Commerce" is material that is bought, sold or exchanged in any manner for goods or services and that otherwise would have to be acquired from alternate sources. Material is not an article of commerce if it:

(a) Remains in-place on the upland where it was first deposited for disposal after dredging (place first deposited) and is not used for any purpose for which compensation is owed to the Department under the provisions of these rules;

(b) Is contaminated and put to beneficial use; or

(3) “Asset Management Plan” is the plan adopted by the State Land Board that provides the policy direction and management principles to guide both the short and long-term management by the Department of the Common School Fund’s real estate assets.

(4) “Authorization” is a written lease or license issued by the Department allowing the holder of the authorization to remove or use material pursuant to the terms and conditions of the authorization.

(5) “Authorized Area” is the area of state-owned upland and submerged or submersible land from which the Department will allow a person to remove or use material through a lease or license.

(6) “Beneficial Use” is any use for which contaminated material is a suitable substitute for non-contaminated material.

(7) "Channel Improvement" is a removal activity conducted under contract or undertaken by a government body to improve federally authorized navigation channels in accordance with official minimum project specifications.

(8) “Compensation” is the amount of money paid to the Department to remove or use material.

(9) “Contaminated Material” is rock, sand, gravel and silt which is a part of, or originated from state-owned submerged and submersible land that contains a hazardous material as defined in ORS 466.605. Contaminated material does not include clean fill.

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

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

(12) “Disposal” is the permanent or long-term placement of dredged material on upland.

(13) "Dredged material" is material that has been dredged from state-owned submerged and submersible land and placed on either state land or land belonging to another person during the process of:

(a) Constructing, maintaining or improving channels, harbors, marinas or flood control projects;

(b) Constructing bridges or other structures;

(d) Conducting other similar activities.

(14) "Flood Control" is an activity undertaken by a person to construct, maintain or improve flood control structures, channels or projects.

(15) “Government Body” means the State of Oregon, a political subdivision, the United States of America or an agency thereof.

(16) "Harbor Improvement" is an activity undertaken by a person pursuant to an authorization issued by the Department to construct, maintain or improve a harbor area that has navigational access to a federally designated navigation channel.

(17) “Lease” is a written authorization issued by the Department to a specific person allowing the exclusive removal or use of a specific amount of material from a specific area under specific terms and conditions for a term not to exceed 10 calendar years.

(18) "Lessee" refers to any person having a lease to remove or use material.

(19) "License" is a written authorization issued by the Department to a specific person allowing the non-exclusive removal or use of a specific amount of material from a specific area under specific terms and conditions for a term of less than three calendar years.

(20) "Licensee" refers to any person having a license to remove or use material.

(21) “Line of Ordinary High Water” means the line on the bank or shore to which the high water ordinarily rises annually in season.

(22) “Line of Ordinary Low Water” means the line on the bank or shore to which the low water ordinarily recedes annually in season.

(23) "Material" means rock, sand, gravel and silt that is a part of, or originated from state-owned submerged and submersible land.

(24) “Non-Commercial Use” means a use that does not result in or is not associated with any monetary consideration or gain.

(25) “Non-Trust Land” is land owned or managed by the Department other than Trust Land. Examples of Non-Trust Land include state-owned Swamp Land Act Land, and state-owned submerged and submersible land (land below ordinary high water) under navigable and tidally influenced waterways.

(26) “Operating Plan” is a document submitted with an application for a lease or license to the Department by an applicant describing:

(a) The method(s) and equipment they intend to use to remove and, if applicable, process material from an authorized area;

(b) The sequence of when and where material will be removed over the term of the lease or license; and

(27) "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, or Indian Tribe.

(28) “Place First Deposited” is the location on the upland where material removed from state-owned submerged and submersible land is deposited for long-term or permanent placement or use. Examples of a “place first deposited” are any of the upland sites in Oregon adjacent to the Columbia River where material removed from that waterway during channel improvement is conveyed by pipeline from the dredge and placed for long-term or permanent storage.

(29) “Political Subdivision” means any local government unit, including but not limited to, a county, city, town, port commission or district, that exists under the laws of Oregon and has power to levy and collect taxes.

(30) "Preference Right" means a riparian property owner’s statutory privilege, as found in ORS 274.040, 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 Department will not recognize a claim of lease preference right from a non-riparian owner. 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 area

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

(32) “Public Purpose” is the removal or use of material if it is:

(a) Removed for channel or harbor improvement or flood control;

(b) Used to fill, dike or reclaim land owned by the state or a political subdivision if that land is located not more than two miles from the bank of the waterway from which the material was removed;

(d) Used to maintain public beaches;

(e) Removed because it is determined to be contaminated with a hazardous material (as defined in ORS 466.605);

(f) Used by a state agency or political subdivision to fill any portion of a waterway up to an elevation of one foot above the line of ordinary high water of that waterway;

(g) Used solely for a public purpose by a political subdivision; or

(h) Otherwise exempt from payment of compensation by state law.

(33) “Reclaiming Land” or “Reclaim” means raising the elevation of a portion of land within a 100-year flood plain (as determined by the Federal Emergency Management Administration) to not more than one foot of elevation higher than the highest elevation of the 100-year flood plain, or protecting land otherwise in the 100-year flood plain by the construction of dikes or other flood control improvements.

(34) “Removal” or “Remove” means the:

(a) Extraction of material from state-owned submerged and submersible land by mechanized or hand-powered equipment; or

(b) Extraction, moving, spreading, leveling or other relocation of material from the place where it was first deposited to another location on, adjacent to, or away from that site by mechanized or hand-powered equipment.

(35) “Reporting Period” is the length of time or frequency for which a lessee or licensee shall report the amount of material removed or used, and for which compensation shall be paid to the Department. The Department shall determine and establish the reporting period as a term of the lease or license.

(36) “Short Tons” is a unit of material equal to 2,000 pounds.

(37) “State Agency” means every state officer, board, commission, department, institution, branch or agency of state government, whose costs are paid wholly or in part from funds held in the State Treasury, except:

(a) The Legislative Assembly, the courts and their officers and committees;

(b) The Public Defense Services Commission; and

(38) “State-Owned Waterway” and “State-Owned Submerged and Submersible Land” refers to any Oregon waterway, the submerged and submersible land of which has been determined through application of the federal test for navigability by the State Land Board, the courts, or the Oregon Legislative Assembly to be owned by the State of Oregon, or otherwise acquired by the State of Oregon. (A list of these waterways can be obtained from the Department of State Lands or found on the agency’s website: www.oregonstatelands.us)

(39) "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.

(40) "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.

(41) “Trust Land” is land granted to the state upon its admission into the Union, or obtained by the state as the result of an exchange of Trust Land, or obtained in lieu of originally granted Trust Land, or purchased with trust funds, or obtained through foreclosure of loans using trust funds.

(42) “Upland” is land above the line of ordinary high water, or mean high tide line.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0220 Policies and General Provisions

(1) Pursuant to Article VIII, Section 5(2) of the Oregon Constitution, the State Land Board, through the Department, has a constitutional responsibility to manage all Trust and Non-Trust Land 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.”

(2) The Department will follow the guiding principles and resource-specific management prescriptions contained in the Asset Management Plan, and consider the comments received from federal, state and local governments, Indian Tribes and interested persons when determining whether to authorize or condition a lease or license for the removal or use of material.

(3) All material removed from state-owned submerged and submersible land continues to be owned by the state regardless of whether it is placed on state land or land belonging to another person until such time that:

(a) A written transfer of ownership of the material is issued by the Department as authorized by these rules;

(b) The parcel, including the material, is sold or exchanged by the Department to another person; or

(4) All persons wanting to remove or use material must, as required by these rules, either apply for and obtain an authorization from the Department, or notify the Department in writing prior to proceeding with the removal or use.

(5) The Department will not grant a lease or license if it determines that the proposed removal or use of the material:

(a) Is in an area that the Department has closed to this activity;

(b) Would unreasonably impact uses or developments proposed for, or already in place within the requested area. Such a determination will be made by the Department after consulting with holders of leases, licenses, permits and easements granted by the Department in the requested area, and other interested persons;

(A) Does not conserve fish and wildlife habitat;

(B) Does not protect water quality; or

(d) Will significantly impact the rights of the public to use a waterway for fishing, recreation, navigation and commerce;

(e) Does not conform with local (including local comprehensive land use planning and zoning ordinance requirements), state and federal laws; or

(f) Will not be in the best interests of the State of Oregon.

(6) If an application to remove or use material is in an area where the amount of material that can be removed is limited by law (for example, in Essential Indigenous Anadromous Salmonid Habitat or a State Scenic Waterway), the Department will condition the amount of material that can be removed or used based on the statutes and administrative rules governing this activity in these areas.

(7) To the extent required by law, the Department shall honor the terms and conditions of any existing valid authorization for the removal or use of material including any that entitle the holder to renew the authorization.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0230 Forms of Authorization Offered by the Department for the Removal or Use of Material

(1) Two forms of authorization are available from the Department for the removal or use of material: a lease or a license. The Department will determine not only if it will issue an authorization, but also the form of that authorization.

(2) The specific form of authorization offered by the Department will depend on the term and nature of the removal or use requested by the applicant.

(3) A lease will be the only form of authorization available from the Department if the applicant wants an exclusive right to remove or use material from a specific area for a term not to exceed 10 years.

(4) A license will be the only form of authorization available from the Department if the applicant wants a non-exclusive authorization to remove or use material for less than three years.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0240 Application Requirements for Removal of Material

(1) Except as provided in OAR141-014-0240(4), any person wanting to remove material must:

(a) Apply in writing to the Department for a lease or license using a form provided by the Department; and

(b) Submit:

(A) A fully completed application form providing all required information;

(B) An operating plan for the removal or use of material;

(C) Evidence satisfactory to the Department that the proposed removal or use is in conformance with the local comprehensive land use plan and zoning ordinances; and

(D) A non-refundable application processing fee payable to the Department to cover the administrative costs of processing the application and issuing the authorization.

(2) The application processing fee for a lease or license is $750;

(3) Unless otherwise allowed by the Director, a fully completed application for a lease or license and other items listed in OAR 141-014-0240(1)(b) must be submitted to the Department at least 90 calendar days prior to the proposed removal of material.

(4) Any person may remove up to 50 cubic yards of material (or the equivalent weight in short tons) from state-owned submerged and submersible land per calendar year for that person's own exclusive non-commercial use without payment of an application processing fee or compensation to the Department. However, no such removal is authorized unless the person:

(a) Gives written notification to the Department at least 30 calendar days prior to removing the material; and

(b) Obtains any other authorizations required by the Department (such as a Removal-Fill Permit) and other applicable local, state, and federal governing bodies to undertake the removal.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0250 Lease or License Application Review and Approval Process

(1) Upon receipt of an application for a lease or license, the Department will determine:

(a) If the application is complete;

(b) If the subject area is available for the requested removal;

(d) If additional information is required concerning the:

(A) Proposed use of the state land; and

(B) Applicant’s financial status, or past business and management practices, or both.

(2) The Department will then advise the applicant of its determination concerning each of the four factors in OAR 141-014-0250(1). Applications determined by the Department to be incomplete, or for an area in which the use would be incompatible, will be returned to the applicant with a written explanation of the reason(s) for rejection.

(3) If an application rejected for incompleteness is resubmitted within 120 calendar days from the date the Department returned it to the applicant (as determined by the date of letter from the Department accompanying the rejected application) with all deficiencies noted by the Department corrected, no additional application processing fee will be assessed.

(4) Upon acceptance by the Department, the application for a lease or license will be circulated to various local, state and federal agencies and other interested persons including tribal governments, adjacent property holders, affected lessees and permitees, and easement holders for review and comment. As a part of this review, the Department will specifically request comments concerning:

(a) The presence of state or federal listed threatened and endangered species (including candidate species), and archaeological and historic resources within the requested area that may be disturbed by the proposed use;

(b) Conformance of the proposed use with local, state, and federal laws and rules;

(d) Conformance with the policies described in OAR 141-014-0220 of these rules; and

(e) Potential conflicts of the proposed use with existing or proposed uses of the requested area.

(5) After receipt of comments concerning the proposed use, the Department will advise the applicant in writing:

(a) If changes in the use or the requested lease or license area are necessary to respond to the comments received;

(b) If additional information is required from the applicant, including but not limited to a survey of:

(A) State or federal listed threatened and endangered species (including candidate species) within the requested area; and

(B) Archaeological and historic resources within the requested area.

(c) If the area requested for the lease or license will be authorized by the Department for use by the applicant through a lease or license; and

(d) Whether the subject area will be made available to the public through competitive bidding pursuant to OAR 141-014-0290. Only requests for leases may be subject to competitive bidding. A license is not subject to competitive bid.

(6) If the Department determines that the proposed removal or use of material meets the policies set forth in these rules, the Department will determine the limits of the area that it wants to make available for the proposed activity.

(7) The Department reserves the right to request that an applicant conduct at their expense a survey of the requested area by a licensed professional engineer or surveyor to establish the limits of the area from which it will allow the removal or use of material. The Department will provide survey instructions as well as specify the information required in the survey and accompanying notes.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0260 Process for Offering a License for the Removal or Use of Material Either From State-owned Submerged and Submersible Land or that is Placed on an Upland Site (Dredged Material)

(1) If, after completing the processes provided in OAR 141-014-0240(1) through (3) and 141-014-0250(1) through (5), the Department decides to offer a license for the removal of material from either state-owned submerged and submersible land, or for the removal of material that is located on upland (dredged material), the Department will:

(a) Notify the applicant in writing of the amount of compensation pursuant to OAR 141-014-0330 that the applicant must remit to the Department to obtain the authorization, and of any insurance and surety bond required by the Department pursuant to the requirements of OAR 141-014-0370; and

(b) Include with the notification a draft copy of the license.

(2) The amount of compensation that must be paid by the licensee as stipulated in the terms and conditions of the license will be:

(a) Based on the amount actually removed or used multiplied by the compensation rate in effect at the time of removal.

(b) Subject to annual adjustments by the Department pursuant to OAR 141-014-0330.

(3) The Department reserves the right to withdraw an area requested for a license at any time prior to issuance of the license.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0270 Process for Offering a Lease for the Removal or Use of Material From State-Owned Submerged and Submersible Land

If, after completing the processes provided in OAR 141-014-0240(1) through (3) and 141-014-0250(1) through (5), the Department decides to offer a lease for the removal of material from state-owned submerged and submersible land, the Department will, pursuant to the requirements of ORS 274.040, offer a preference right to lease to the eligible party as defined in OAR 141-014-0210(30) and (31), hereafter referred to as the preference right holder. The Department will take the following steps to offer this preference right.

(1) If the proposed lease area consists of a single parcel, or two or more contiguous parcels owned by the same person, the Department will extend the boundaries of the single parcel or combined group of single-ownership parcels perpendicular to the thread of the stream creating a single lease parcel that fronts and abuts the upland ownership.

(2) If the proposed lease area consists of parcels having different owners, the Department will subdivide the requested lease area into smaller parcels by extending lines perpendicular to the thread of the stream from the boundaries of, or within the boundaries of the adjacent riparian tax lot so that there is a separate lease parcel for each parcel of property that fronts and abuts the lease area.

(3) In accordance with the proposed use(s), the Department will calculate in a manner consistent with OAR 141-014-0320 and 141-014-0330 a minimum annual compensatory payment for each lease parcel. The minimum bid or compensation amount shall be established by the Department based on the:

(a) Compensation rate in effect at the time that the application is received by the Department; and

(b) The amount of material that the applicant states on their application they intend to remove or use each year for the term of the lease requested.

(4) The Department will notify each preference right holder in writing that a lease application has been approved by the Department and provide 30 calendar days from the date on the letter of notification for the preference right holder to exercise their preference right to take the lease at the established minimum annual compensatory payment.

(5) If the preference right holder has accepted the offer of a preference right to lease and has executed the lease form and all other documents and remitted the required minimum annual lease rental payment within the required 30 calendar day period, the Department will execute the lease.

(6) If the preference right holder does not exercise the preference right to take a lease applied for by another person, the Department will prepare and publish an advertisement for bids pursuant to ORS 274.040 and hold a public auction pursuant to OAR 141-014-0290. The highest qualified bidder will be awarded the lease. The minimum bid amount will be set by the Department.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0280 Process for Offering a Lease for the Removal or Use of Material that Has Been Placed on an Upland Site (Dredged material)

(1) A preference right to lease is not available to the owner of land underlying or adjacent to dredged material that has been deposited on an upland site.

(2) If after completing the processes provided in OAR 141-014-0240(1) through (3) and 141-014-0250(1) through (5), an application is for a lease to remove or use material placed on an upland site, the Department will determine if it wants to offer the requested material or site through a public auction.

(3) If the Department decides to make the requested area available at public auction, it will prepare and publish an advertisement for bids. The minimum bid or compensation amount will be established by the Department based on the:

(a) Compensation rate in effect at the time that the application is received by the Department; and

(b) The amount of material that the applicant states on their application they intend to remove or use each year for the term of the lease requested.

(4) The highest qualified bidder shall be awarded the lease.

(5) If the Department decides to not offer the lease for the requested area through public auction, it will issue the lease to the applicant.

(6) The compensation established by the Department that must be paid to the Department is subject to annual adjustments by the Department pursuant to the provisions of OAR 141-014-0330.

(7) The Department reserves the right to withdraw an area requested for a lease at any time prior to issuance of the lease.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0300 Measurement Determination

(1) The Department may at its discretion allow an applicant, lessee or licensee who is unable to measure and report the amount of material removed or used in cubic yards to measure and report the quantity in short tons. However, the Department:

(a) Will only allow an applicant, lessee or licensee to report removal and use of material in short tons if they develop, at their own expense, a short ton-to-cubic yard conversion factor based on tests of the material;

(b) Reserves the right to accept or reject the short ton-to-cubic yard conversion factor; and

(c) May at any time during the term of the lease or license require the lessee or licensee to re-establish, at their own expense, the validity of the conversion factor.

(2) If it is determined by the lessee, licensee or the Department that the short ton-to-cubic yard conversion factor in use is not valid, modification of the compensation owed will be prospective only.

(3) Any changes made to the short ton-to-cubic yard conversion factor used in a lease or license will be made by written addendum to that lease or license.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0310 Activities Subject to Payment of Compensation

(1) Unless otherwise specifically exempted by OAR 141-014-0320, all material removed or used is subject to payment of compensation to the Department.

(2) Compensation will be paid and is owed to the Department if the material is:

(a) Removed by any person directly from state-owned submerged and submersible land and subsequently:

(A) Bought by that person;

(B) Sold by that person; or

(C) Exchanged by that person in any manner for goods or services which otherwise would have to be acquired from other sources;

(b) Sold, used or exchanged as an article of commerce by any person; or

(c) Removed without notifying or applying, or both notifying and applying to the Department in writing within the required time period stipulated in OAR 141-014-0320(2)(b).

(3) Compensation will be paid to the Department for the removal or use of material that loses its exemption for the reasons given in OAR 141-014-0320(6).

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0320 Compensation Exempt Activities

(1) Numerous exemptions to the payment of compensation to the Department are provided in ORS 274.550.

(2) Compensation is not owed to the Department if:

(a) The material is removed or used for a public purpose, and

(b) The Department is notified in writing of the proposed removal, use or disposal for a public purpose at least 30 days prior to when the removal, use or disposal will begin.

(3) The exemption provided in OAR 141-014-0320(2) exists regardless of when the material is removed or used for a public purpose (even if it is taken from the place first deposited) as long as the notification requirements are met.

(4) A public purpose occurs when the material is:

(a) Removed for channel or harbor improvement or flood control;

(b) Used to fill, dike or reclaim land owned by the state or a political subdivision if that land is located not more than two miles from the bank of the waterway from which the material was removed;

(d) Used to maintain public beaches;

(e) Removed because it is determined to be contaminated with a hazardous material (as defined in ORS 466.605);

(f) Used by a state agency or political subdivision to fill any portion of a waterway up to an elevation of one foot above the line of ordinary high water of that waterway;

(g) Used solely for a public purpose by a political subdivision; or

(h) Otherwise exempt from payment of compensation by state law.

(5) In addition, any person may remove up to 50 cubic yards of material (or the equivalent weight in short tons) per calendar year for that person's own exclusive non-commercial use without payment of compensation to the Department. However, no such removal is authorized unless the person:

(a) Gives written notification to the Department at least 30 calendar days prior to removing the material; and

(b) Obtains any other authorizations required by the Department (such as a Removal-Fill Permit) and other applicable local, state, and federal governing bodies to undertake the removal.

(6) Except in the case of material determined to be contaminated, these exemptions no longer apply and compensation is owed and must be paid to the Department if the material is:

(a) Removed from the place first deposited after removal from state-owned submerged and submersible land and not used for a public purpose;

(b) Sold or used as an article of commerce; or

(c) Removed without notifying or applying, or both notifying and applying to the Department in writing within the required time periods stipulated in OAR 141-014-0320(2)(b) and (5)(a).

(7) Although material may be exempt from payment of compensation to the Department, any person wanting to remove or use material must apply for and receive an authorization from the Department pursuant to these rules prior to such removal or use.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0330 Compensation

(1) Each lessee or licensee must pay compensation to the Department in an amount based on quantity of material actually removed or used during that reporting period multiplied by the compensation rate in effect at the time of the removal or use.

(2) The Department will establish for each lease and license the basis for which payment of compensation shall be calculated and paid, as well as the reporting period.

(3) Each lessee and licensee must on a monthly basis or as otherwise required as a term and condition of the lease or license:

(a) Report to the Department the amount of material removed or used; and

(b) Calculate and submit to the Department the amount of compensation owed to the Department as provided in the lease or license.

(4) Unless otherwise agreed to in writing by both the Department and the lessee or licensee:

(a) Compensation must be paid on the basis of the reporting period determined by the Department and provided as a term of the authorization;

(b) Compensation payments and removal reports must be received by the Department no later than the 20th calendar day after the end of the reporting period during which the material was removed or used; and

(c) Removal reports must be submitted to the Department every period, including those reporting periods in which no material was removed or used, or compensation paid.

(5) Compensation not paid by the due date will accrue interest at the maximum rate allowed by law from the first day of the reporting period following the end of the reporting period during which the material was removed or used.

(6) The compensation to be paid by a lessee or licensee to the Department for material removed or used under a lease or license for calendar year 2008 shall be:

(a) $0.63 per cubic yard for material removed from state-owned submerged and submersible land; and

(b) $0.71 per cubic yard for state-owned dredged material that has been placed on either land controlled by the Department or land belonging to another person.

(7) All sand and gravel leases or licenses in effect at the time the compensation rates indicated in OAR 141-014-0330(6) are adopted will be subject to the new rates upon renewal or redetermination as specified in the lease or license agreement.

(8) The minimum compensation rates indicated in OAR 141-014-0330(6) will be adjusted every calendar year based on the annual changes in the United States Department of Labor’s Producer Price Index (Industry Code #1442) for Construction Sand and Gravel.

(9) Any increase or decrease resulting from application of the United States Department of Labor’s Producer Price Index (#1442) for Construction Sand and Gravel (or any other index selected by the Department) will be limited to a maximum of 5% per year. Compensation rates will not be adjusted below those rates established in OAR 141-014-0330(6).

(10) Should the United States Department of Labor’s Bureau of Labor Statistics discontinue publishing this index, the Department will select another index to use.

(11) Pursuant to ORS 274.590, the Department may cooperate with, and enter into agreements with officials of the State of Washington concerning the contracting for, receipt and collection of compensation for material removed or used from the state-owned submerged and submersible land underlying the Columbia River. Consequently, notwithstanding the provisions of OAR 141-014-0330(6) through (10) of these rules, the Department may establish a compensation rate for material removed or used from Oregon’s state-owned submerged and submersible land underlying the Columbia River that is equal to the compensation established by the State of Washington for the removal of rock, sand, gravel and silt derived from that state’s submerged and submersible land underlying the Columbia River.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0340 Lease and License Modifications

(1) A lessee or licensee must submit a new application to the Department if they want to:

(a) Enlarge the area they are authorized to use under their lease or license;

(b) Increase the amount of material they want to remove; or

(2) The Department may amend a lease or license upon receipt of a written request by a lessee or licensee to reduce the authorized area if a portion of it is not used for the removal or sale of material.

(3) Requests to enlarge the size of an authorized area, increase the amount of material removed, or change the methods used to remove or process material will be processed and reviewed in the same manner as a new lease or license application as provided in these rules.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0350 General Lease and License Conditions

(1) All leases are exclusive and will only be offered through a competitive bid auction procedure except when:

(a) The applicant is the preference right holder of the area for which an application is received;

(b) A preference right holder accepts an offer by the Department to enter into a lease for the state-owned submerged and submersible land fronting their upland; or

(c) The Director determines that the best interests of the Department and the policies provided in OAR 141-014-0220 are served by offering the lease to the applicant.

(2) The Department reserves the right to modify the terms and conditions of its standard lease or license if, in the judgment of the Department and concurrence of the Department of Justice, such changes are required given the size and nature of the proposed removal, use or sale of material or the risks associated therewith.

(3) The maximum term for a lease will be 10 calendar years; licenses will be issued for a term of less than three calendar years.

(4) A lease or license issued by the Department must be on a form supplied by the Department that has been approved by the Department of Justice for legal sufficiency pursuant to ORS 291.045 to 291.047 (Public Contract Approval).

(5) Each lessee and licensee must maintain and make available for audit by the Department adequate records and accounts which accurately reflect the amount of material removed or used from the authorized area.

(6) State-owned submerged and submersible land, regardless of whether it is included in an authorized area, must remain available and open to the public for commerce, navigation, fishing and recreation unless restricted or closed to public entry by the State Land Board. A lessee or licensee may request the Department to close the authorized area to public entry or restrict recreational use by the public on all or portions of the authorized area to protect persons or property from harm arising from, or in connection with the removal or use of material.

(7) A lessee or licensee may restrict public use of lessee or licensee-owned property or structures within the authorized area.

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

(9) A lessee or licensee must dispose of all waste in a proper manner and shall not permit waste, debris, garbage or other refuse to either accumulate within the authorized area or be discharged into the waterway unless so authorized by the Department of Environmental Quality. A lessee’s or licensee’s failure to comply with this provision will be considered a material default of the lease or license.

(10) Except as authorized by the lease or license, a lessee or licensee must not cut, destroy or remove, or permit to be cut, destroyed or removed any vegetation (except for noxious weeds) that may be upon the authorized area without the prior written authorization of the Department. The lessee or licensee will promptly report to the Department the cutting or removal of vegetation by other persons.

(11) A lessee or licensee must, in accordance with the terms and conditions of their lease or license, conduct all operations within the authorized area in a manner that conserves fish and wildlife habitat, protects water quality, and does not contribute to insect or animal infestation, soil erosion or the growth of noxious weeds.

(12) A lessee or licensee must maintain all buildings; removal, processing and sales-related machinery and equipment; docks; and similar structures and improvements located within the authorized area in a good state of repair and workmanlike manner as determined by the Department.

(13) The Department may require that an applicant for a lease or license to remove or use material present evidence to the Department prior to removal or use of any material that they have obtained:

(a) All authorizations required by the applicable local, state, and federal governing bodies to undertake the removal or use of the material;

(b) Any authorization that may be required to obtain access or to cross land belonging to a person other than the Department to remove or use state-owned dredged material placed on that land; and

(c) A surety bond or comprehensive or commercial general liability insurance, or both, in an amount required by the Department.

(14) The holder of a lease or license must indemnify the State of Oregon and the Department of State Lands against any claim or costs arising from or related to a release of a hazardous substance on or from the authorized area.

(15) An authorization issued by the Department will be conditional and not valid until:

(a) The holder has received all other authorizations required by the Department (such as a Removal-Fill Permit pursuant to OAR 141-085-0005 through 141-085-0176) and other local, state, and federal governing bodies to undertake the removal or use of the material; and

(b) The Department has received all fees and compensation specified in these rules, and evidence of any required insurance and surety bond.

(16) An applicant for a lease or license is responsible for obtaining any authorization that may be required to obtain access to, or to cross land belonging to a person other than the Department to remove or use state-owned dredged material placed on that land.

(17) The Department may, at its discretion, deny a lease or license application or lease renewal to remove or use material if the applicant’s financial status, and past business and management practices indicate that the applicant may not:

(a) Be able to fully meet the terms and conditions of a lease or license offered by the Department; or

(b) Use the land applied for in a way that meets the provisions of OAR 141-014-0220.

(18) The Department may:

(a) Conduct field inspections to determine if the removal or use of material is authorized by, or conforms with the terms and conditions of a lease or license; and, if not,

(b) Pursue whatever remedies are available under law and OAR 141-014-0410 to ensure that the unauthorized removal or use of material is either ceased or brought into compliance with the requirements of these rules.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0360 Lease and License Renewal

(1) To the extent required by law, the Department shall honor the terms and conditions of any existing valid authorization for the removal or use of material including any that entitle the holder to renew the authorization.

(2) A lessee shall have an option to renew a lease entered into after the effective date of this rule for an additional term of not more than 10 years provided that the lessee has submitted a completed lease renewal application form provided by the Department to the Department not less than 90 calendar days prior to the lease expiration date otherwise allowed by the Director. Upon receipt of such application, the lease will be renewed by the Department unless:

(a) The Department determines, in its sole discretion, that the lessee has not complied with the terms and conditions specified in their lease, the applicable statutes, or Oregon Administrative Rules;

(b) The person who held the preference right to lease at the time the lease subject to renewal was initially offered is no longer the same person, in which case the Department will offer the preference right to lease to the new owner;

(d) The Department determines that the renewal of the lease for all or portions of the authorized area would be contrary to local, state, or federal law, or would be inconsistent with the policies set forth in OAR 141-014-0220.

(3) An application for renewal of a lease shall be accompanied by a non-refundable fee in the amount of $750 payable to the Department.

(4) A license is not renewable. However, a person holding a license that has expired, or is approaching expiration, may apply to the Department for a new license or lease covering the same area authorized in the expiring or expired license in the same manner as provided in OAR 141-014-0240. The Department reserves the right to deny granting a new license or lease if:

(a) The Department determines, in its sole discretion, that the licensee has not complied with the terms and conditions specified in their lease, the applicable statutes, or Oregon Administrative Rules; or

(b) The Department determines that the renewal of the license for all or portions of the authorized area would be contrary to local, state, or federal law, or would be inconsistent with the policies set forth in OAR 141-014-0220.

(5) The Department reserves the right to limit the term of a new license to less than the maximum term allowed by these rules.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0370 Insurance and Bond

(1) The Department, in the exercise of its reasonable discretion, may require the holder of a lease or license to remove or use material to obtain insurance in a specified amount if the use or removal, in the opinion of the Department, constitutes a risk to public safety, or to the State of Oregon.

(2) The Department may request that the applicant for, or the holder of a lease or license to remove or use material provide information concerning the use of the area to the Risk Management Division of the Oregon Department of Administrative Services, which may assist the Department in determining the appropriate amount of insurance coverage based on the nature of the use.

(3) The Department may, at its discretion, require that the holder of a lease or license obtain a surety or bid bond in an amount specified by the Department (or a cash deposit in an amount equal to the surety bond and which names the State of Oregon as co-owner) to ensure that they will perform in accordance with all terms and conditions of the lease or license.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274.525 & 274.550
DSL 5-2008, f. & cert. ef. 10-23-08
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0380 State Land Closures and Use Restrictions

(1) The Department may by itself, or at the request of another person, request Land Board authorization to begin rulemaking to close all or part of a parcel of state land to the removal or use of material.

(2) The Land Board may approve all or a portion of such a request upon a finding that the requested limitation is necessary to prevent unreasonable interference with the public's right to use the waterway for commerce, navigation, fishing and recreation; or to carry out the policies set out in these rules at OAR 141-014-0220; or to ensure compliance with any endangered species management or recovery plan adopted by the Department under the Oregon Endangered Species Act (ORS 496.171 to 496.192).

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0390 Termination of a Lease or License For Default

(1) If the holder of a lease or license to remove or use material fails to comply with these rules or the terms and conditions of the authorization, or otherwise violates laws governing their removal or use of material or the authorized area, the Department will notify the holder of the authorization in writing of the default and demand correction within a specified time frame.

(2) If the holder of a lease or license to remove or use material fails to correct the default within the time frame specified, the Department may:

(a) Modify or terminate the lease or license; and

(b) Request the Attorney General to take appropriate legal action against the holder of the lease or license.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0400 Assignment of Leases and Licenses; Subleasing

(1) Except as authorized in the lease or these rules, in no event will the lessee sublease or assign, or licensee assign any portion of the authorized area prior to receipt of written approval from the Department. Violation of this provision may be grounds for termination of the lease or license.

(2) A lessee must apply in writing on a form provided by the Department to the Department for a sublease or an assignment.

(3) Licensees may only apply to the Department for an assignment.

(4) Lessees desiring to sublease or assign a lease, or licensees desiring to assign a license in a manner not permitted outright by the lease, license or these rules must:

(a) Apply to the Department on a form provided by the Department; and

(b) Submit a non-refundable application processing fee of $750 payable to the Department of State Lands.

(5) If the application is incomplete, the Department will return the application to the applicant with a written explanation of the reason(s) for rejection.

(6) If an application is rejected by the Department for incompleteness or some other reason, the applicant may resubmit it to the Department within 120 calendar days from the date of the letter of written explanation sent by the Department with no additional application fee due.

(7) Sublessees and assignees must meet all applicable requirements set forth in these rules and the lease or license.

(8) The transfer of ownership of the lease or license caused by the death of the lessee or licensee will be considered an assignment requiring the Department’s approval. A transfer of ownership to a spouse or immediate family member is an assignment that does not require the Department’s prior approval.

(9) A lessee or licensee may not grant a mortgage or security interest in the lease or license without the prior written consent of the Department which shall not be unreasonably withheld. Any subsequent assignment by the creditor will require the prior written approval of the Department.

(10) The Department may request additional information on the sublessee’s or assignees’s financial status, or past business and management practices, or both. The Department may, at its discretion, deny the assignment request if the assignee’s financial status, or past business and management practices, or both, indicate that they may not be able to fully meet the terms and conditions of a lease offered by the Department.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0410 Enforcement Actions; Civil Penalties and Other Remedies

(1) Upon the Director’s own initiative, or in response to a complaint, the Director may investigate a suspected violation of a lease, license or other authorization to use or remove material, or the alleged unauthorized use of state land and removal of material, to determine if the use or removal of material conforms with the terms and conditions of a lease, license or other authorization, or to determine if the use or removal of material is not authorized.

(2) In conducting the inspection relative to suspected or alleged violations of a lease, license or other authorization issued by the Director, the Director, or the Director’s agent, may enter onto private property of the holder of the authorization in order to determine if a violation has occurred.

(3) Upon a determination that a violation of the lease, license or other authorization has occurred or that an unauthorized use of, or removal of material from state land has occurred, the Director may exercise the remedies set forth in the lease, license or other material use or removal authorization, any other remedies available at law, or impose civil penalties consistent with OAR 141-014-0410(4) and (5), below.

(4) ORS 273.241 provides that the removal or use of material from any property of the State of Oregon under the control of the Department by any person without an authorization constitutes a trespass for which the state, in addition to any action commenced under 273.990, may also commence an action for damages. If damages are assessed against the defendant in any such action, the state will be awarded double the amount of damages assessed if the trespass is willful.

(5) The unauthorized use or removal of material from state-owned submerged and submersible land or a violation of a lease, license or other authorization granted under these rules authorizing the use of, or removal of material from state-owned submerged and submersible land are a violation of ORS 274.040 and OAR 141-082. In addition to any other penalty or sanction provided by law, the Director may assess a civil penalty pursuant to ORS 274.992, 274.994, and OAR 141-082-0130 for the unauthorized use of state-owned submerged and submersible land, or for the violation of a special use authorization granted under these rules authorizing the use of state-owned submerged and submersible land.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Or. Admin. R. 141-014-0420 Reconsideration of Decision

(1) An applicant for a lease or license to remove or use material, or any other person adversely affected by the issuance or denial of lease or license to remove or use material may request that the Director or the Land Board, depending upon which entity made the decision, reconsider the decision:

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

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

(c) If the Director made the decision of concern, s/he may affirm the decision, issue a new or modified decision, or request the applicant to submit additional information to support the appeal.

(d) If the decision was made by the Land Board, the Director may recommend to the Land Board either that the lease or license issuance or denial be affirmed based on the merits of the request, or that the Land Board authorize initiation of a contested case proceeding.

(2) If the Director recommends initiating a contested case proceeding, the Department will select a hearing officer and proceed pursuant to ORS 183.413 through 183.470.

History

Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560
Statutes/Other Implemented: ORS 274 .525 & 274 .550
DSL 2-2008, f. & cert. ef. 10-15-08

Division 15 PROCEDURES GOVERNING DEFAULTS ON COMMON SCHOOL TIMBER SALE CONTRACTS

Or. Admin. R. 141-015-0000 Purpose

The purpose of these rules is to provide a uniform procedure governing defaults on Common School timber sale contracts involving only Common School Lands or contracts in which the timber on the Common School Lands predominates in value.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.521
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Or. Admin. R. 141-015-0005 Definitions

(1) “Default” occurs whenever the Forester finds that the purchaser has not complied with the terms and conditions of the contract, or if the purchaser injures or severs timber not included in the sale.

(2) “Damages and Expense” means costs, damages, losses and expense incurred by the State of Oregon by reason of a default including but not limited to any unpaid balances owing the State as determined by either a calculation of the State Forester or as the result of the difference in values between the original sale and the resale of the defaulted parcel; calculated or actual costs for preparing the defaulted parcel for resale; rehabilitation or regeneration delay costs; any expense incurred by the department for legal services resulting from the default, any interest charge as provided for in these rules or any other damages allowed by law.

(3) “Department” means the State Forestry Department.

(4) “Director” means the Director of the Division of State Lands.

(5) “Forester” means the State Forester.

(6) “Market Value” means the value of timber as determined by the Forester, using relevant transaction evidence. Relevant transaction evidence may include, but not be limited to, recent timber sale bid data, log prices, or appraisals.

History

Statutory/Other Authority: ORS 273.521
Statutes/Other Implemented: ORS 273.521
LB 3-1990, f. & cert. ef. 8-7-90
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Or. Admin. R. 141-015-0010 Default — Future Bidding

(1) Except where the purchaser posts security as provided in OAR 141-015-0030, or except as may be otherwise provided in these rules, any purchaser of timber from Common School Forest Lands or any assignee of such purchaser who defaults on a contract with the Forester for the purchase of Common School Forest Lands timber shall not thereafter be permitted to bid any Common School Land timber sale conducted by the department including a sale involving the timber in default until the state is reimbursed for all damages and expense incurred by it as a result of the default.

(2) In the case of a contract for the sale of timber which includes both Common School Forest Lands and other lands, this rule shall apply only if the timber on the Common School Forest Lands predominates in value.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.521
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Or. Admin. R. 141-015-0020 Notice of Default to Purchaser

The State Forester by certified mail shall notify a purchaser of any default. The notice shall include the following information:

(1) The default allegedly committed by the purchaser and the facts showing the alleged default.

(2) The corrective action, if any, that can be taken by the purchaser to remedy the default and the time within which such action must be taken.

(3) That if the purchaser refuses to correct the default or the default cannot be remedied, the purchaser will be barred from bidding on future contracts including the contract in dispute, unless the state is reimbursed for all damages and expense incurred by it as a result of the default or the purchaser posts a bond or places in escrow cash or marketable securities in an amount estimated by the Forester to be sufficient to reimburse the state for all damages and expense that will be incurred by it as a result of the default.

(4) The right of the purchaser pursuant to OAR 141-015-0030, to request the Forester to estimate the damages and expense that will be incurred by the state as a result of the default.

(5) The right of the purchaser to request a contested case hearing on the existence of the default, the corrective action required by the Forester, the estimate of damages and expense by the Forester, any questions that may arise concerning the security that may be posted by the purchaser in order to be permitted to bid and any other questions concerning the purchaser’s qualifications to bid.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.521
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Or. Admin. R. 141-015-0030 Request to Bid by Purchaser — Appeal

If a purchaser in default wishes to bid on future contracts, it shall so notify the Forester in writing. The Forester shall, within 30 days of receipt of the notice, estimate the damages and expense that will be incurred by the state as a result of the default. The estimate shall be sent by certified mail to the purchaser. If the purchaser posts a bond in an amount sufficient to cover the estimated damages and expense or places in an escrow account cash or marketable securities readily convertible into cash in an amount sufficient to cover the estimated damages and expense or a combination of such bond, cash and securities in the required amount, the Forester shall grant permission to the purchaser to bid on contracts other than the contract in dispute. The terms of the escrow agreement shall be satisfactory to the State Forester.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.521
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Or. Admin. R. 141-015-0040 Contested Case Hearing

(1) Within 30 days after mailing of the estimate by the Forester, the purchaser may request a contested case hearing before the Forester and the Director of the Division of State Lands concerning any of the following issues:

(a) Whether a default was committed by the purchaser;

(b) Whether the corrective action which the Forester ordered to be taken by the purchaser is appropriate;

(c) Whether the Forester’s estimate of damages and expense incurred or to be incurred by the state as a result of the alleged default is reasonable or arbitrary;

(d) Whether the security posted or proposed to be posted by the purchaser is sufficient; and

(e) Any other issues relevant to the purchaser’s qualifications to bid.

(2) The hearing shall be governed by ORS 183.413 to 183. 497. A hearings officer may be appointed by the Director and the Forester to hear the case. However, the hearings officer shall not have authority to issue a final order. Any order issued under this rule shall be signed by both the Director of the Division of State Lands and the State Forester and may be appealed as provided in ORS 183.482.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.521
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Or. Admin. R. 141-015-0050 Settlement of Default

(1) In the event of default, the purchaser shall have the following options for settlement of the contract:

(a) Prompt settlement:

(A) A purchaser may settle a default by the completion date of the contract. Such settlement shall include payment of the balances owing the state plus any other damages and expense incurred by the state as a result of the default;

(B) Damages and expense shall include, but not be limited to, any calculated costs and losses resulting from the resale of the parcel and any rehabilitation or regeneration delay costs and losses in areas which have been harvested;

(b) Delayed settlement:

(A) Cash Resale. The original purchaser shall be responsible for any monies due the state if the balance of payments owing and other damages and expense incurred as a result of the default are not offset by the values of the resale on a cash basis. Such balances shall be due 30 days after the resale and award of the contract. Any delays in payment after the due date shall be subject to an interest charge;

(B) Recovery Resale. The original purchaser shall be responsible for any monies due the state if the balance of payments owing and other damages and expense incurred in the original sale are not offset by the values in the new sale on a recovery basis. The original purchaser shall have the option of settling with the state based upon the resale bid and the state’s estimate of volume and value to be recovered. If this option is not exercised within 30 days of the award of the resale, then an interest charge on any monies owing shall accrue from the date the resale is awarded until the settlement is made;

(C) Without Resale. In the event a defaulted parcel is not resaleable, the difference between the appraised price of the parcel and the original bid price plus any damages and expense and interest due shall become the basis for a negotiated settlement between the purchaser and the state Forester.

(A) The Forester may take one or more of the following actions:

(i) Terminate the contract;

(ii) Assess damages and expenses in the amount of:

(I) Treble the market value of the severed or injured timber if the purchaser’s action is willful or intentional or;

(II) Double the market value of the severed or injured timber if the purchaser’s action is not willful or intentional.

(B) Any damages assessed for injury or severance are in addition to and not in lieu of any other damages to which the Forester may be entitled under section (1) of this rule.

(2) In either option, the following shall apply:

(a) The interest rates used shall be those in effect being earned by the excess fund in the state Treasurer’s office at the time interest commences to run;

(b) In the case of a required project which was completed by the purchaser for the defaulted contract, the purchaser is entitled to credit for the project in the amount of the appraised value of the project as shown in the appraisal filed in the Forester’s office minus any compensation the purchaser has received for the project during the course of the contract;

(c) Initial down payments may be retained by the state and surety bonds shall be maintained in effect until the State has been reimbursed for all damages and expense incurred as a result of the default.

History

Statutory/Other Authority: ORS 273.521
Statutes/Other Implemented: ORS 273.521
LB 3-1990, f. & cert. ef. 8-7-90
LB 1-1983, f. & ef. 4-29-83
LB 10-1982(Temp), f. & ef. 11-18-82

Division 16 CONTROL OVER THE EXPORT OF UNPROCESSED TIMBER FROM COMMON SCHOOL FOREST LAND AND OTHER BOARD-MANAGED LANDS

Or. Admin. R. 141-016-0000 Purpose and Applicability

These rules apply to the sale of timber and logs from common school forest lands and to other Board-managed lands. The State Forester shall have the responsibility to apply these rules on common school forest lands and the Director of the Division of State Lands shall apply them to other Board-managed land as described in these rules.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0010 Criteria for Eligibility to Purchase State Timber or Logs

(1) In addition to all other requirements of law, a person may bid for state timber or logs originating from state lands if the person certifies in a form and manner specified by the State Forester or Director that:

(a) The person will not directly or indirectly export unprocessed state timber or logs; and

(b) Unless exempted by section (2) of this rule, the person has not directly or indirectly exported unprocessed timber from private lands in Oregon for a period of not less than 24 months prior to the date of submission of the bid; and

(c) The person will not sell, transfer, exchange or otherwise convey unprocessed state timber or logs to any other person without obtaining a certification from the person that meets the requirements of OAR 141-016-0030.

(d) The person shall not engage in export of unprocessed timber originating from private lands in Oregon until such time as all interests in contracts for state timber held by that person have terminated.

(2) Purchases of hardwood logs originating from state timber sales for domestic processing only may be made by persons otherwise ineligible to bid under (1)(b) above, provided they certify that:

(a) They have not directly or indirectly exported unprocessed hardwood timber from private lands in Oregon for at least 24 months.

(b) The hardwood logs shall be domestically processed.

(c) They will obtain a certification from any person to whom they sell, transfer, exchange or otherwise convey state hardwood logs that meets the requirements of OAR 141-016-0030.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0015 Prohibition Against Indirect Substitution

In addition to all other requirements of law, no person who is prohibited from purchasing timber directly from the State Forester or Director may purchase state timber from any other person. Acquisitions of Western red cedar which are domestically processed into finished products to be sold into domestic or international markets are exempt from the prohibition contained in this rule.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0020 Applicable State Timber

All unprocessed timber, as defined in OAR 141-016-0005(16), which originates from state lands is prohibited from export.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0025 Surplus Timber

The prohibitions against export contained in OAR 141-016-0000 to 141-016-0045 shall not apply to specific quantities of grades and species of unprocessed timber originating from state land which the United States Secretary of Agriculture or Interior has determined by rule to be surplus to the needs of timber manufacturing facilities in the United States.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0030 Reporting Requirements

(1) Before the State Forester or Director will issue final acceptance of timber sale contract requirements, a purchaser of state timber or logs must:

(a) Notify the appropriate agency of the delivery destination of all timber or logs purchased under that contract. Notification will be made in a form and manner prescribed by the State Forester or Director;

(b) Prior to selling, trading, exchanging or otherwise conveying unprocessed state timber or logs to any other person, the purchaser of state timber shall obtain a certification of the person’s eligibility to purchase state timber or logs and their intent to comply with the terms and conditions contained in this section. Certification will be made in a form and manner as prescribed by the agency and shall be forwarded to the State Forester or Director upon completion of the transaction. Obtaining a certification shall not relieve the purchaser’s responsibility to provide the State Forester or Director with an accounting of the delivery destination of that timber or logs.

(2) Any performance bond required by a state timber sale contract may be retained by the State Forester or Director until satisfactory notification of the state timber or logs delivery destination has been received by the State Forester or Director.

(3) Failure to provide the State Forester or Director with a final accounting of the delivery destination of state timber or logs will be considered a violation of these export regulations. Violators will be subject to the penalties contained in OAR 141-016-0035.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0035 Purchaser Disqualification and Termination of Contracts

(1) The State Forester or Director shall keep a record of any person who violates the requirements of OAR 141-016-0000 to 141-016-0040.

(2) A person whose name appears on the record for violations as stated in section (1) of this rule, and who again violates the requirements of OAR 141-016-0000 to 141-016-0040 shall be disqualified from bidding on or purchasing state timber for a period of five years following the date of the violation. Any appeals of disqualification shall be handled as provided in ORS 279.045.

(3) The State Forester or Director may cease operations on and/or terminate any state timber sale contract entered into with a person who has violated the requirements of OAR 141-016-0000 to 141-016-0040, and assess damages according to the following formula: D = (OSV+AC) - (PR+RSV), where:

(a) D = Damages and Expenses;

(b) OSV = Original Sale Value (timber only — does not include project value). The original sale value shall be adjusted to reflect estimated overruns or underruns on recovery sales;

(c) AC = Administrative Costs. These costs include both the field and office costs required for the preparation of the defaulted parcel for resale. These costs also include rehabilitation or regeneration delay costs, legal service costs, interest, and other costs allowed by law;

(d) PR = Payments Received;

(e) RSV = Remaining Sale Value. The value of the remaining timber shall be determined using the State Forester’s or Director’s estimate of remaining volume, multiplied by the dollar values stated in the contract.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0040 Log Branding and Marking Requirements

All unprocessed state timber or logs originating from state timber sales shall be branded with an assigned and registered brand before removal from the sale area. Unless prevented by the size or condition of the wood one end of all logs originating from state timber sales shall be hammer branded and one end shall be painted with a paint type and color determined by the State Forester or Director.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Or. Admin. R. 141-016-0045 Enforcement

Investigation of suspected violations of these rules and/or surveillance of unprocessed timber in transit and at port facilities may be conducted by the State Forester or Director, or contracted by the State Forester or the Director to other state or federal agencies. Any alleged violations of the export prohibition provisions of this section will be referred by the State Forester or Director to the appropriate federal or state agency for prosecution or other legal action.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.521
DSL 4-2000, f. & cert. ef. 4-24-00

Division 50 OREGON NATURAL HERITAGE PROGRAM RULES

Or. Admin. R. 141-050-0450 Purpose

The purpose of these rules is to provide a central and continuing register of areas in Oregon which contain significant natural heritage resources and special species, and describe the process used to register properties on the Oregon Register of Natural Heritage Resources. Ref. ORS 273.581, Chapter 208, Oregon Laws 1981.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273 .563 - 273 .591
Renumbered from 141-050-0890, DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0500 Definitions

As used in these rules, unless the context provides otherwise:

(1) "Agency" means any federal, state or local government agency, department, board, or commission.

(2) "Board" means the State Land Board.

(3) "Candidate Natural Area" means a natural resource area which may be considered for registration or dedication.

(4) "Council" means the Natural Heritage Advisory Council as established in ORS 273.571.

(5) "Dedicated" means the formal recognition and protection of a natural area for natural heritage conservation purposes.

(6) "Document" means a documented record, report or map pertaining to the Natural Heritage Program data.

(7) "Elements" means both the natural heritage resources and the special species.

(8) "Instrument" means any written document intended to convey an interest in real property pursuant to ORS 93.710, or an agreement between parties pursuant to the Natural Heritage Program, the Natural Heritage Plan, or matters related thereto.

(9) "Introduced Species" means exotic or non-native species.

(10) "Managed Area" means a registered or dedicated Natural Heritage Conservation Area that, by management agreement between the Board and private landowner, or agency, the area and its elements are maintained in a manner to protect the natural character.

(11) "Management Scheme" means a plan that sets forth in detail the responsibilities for the administration of an individual Natural Heritage Conservation Area.

(12) "Natural Area" means a unit of land or water, or both, which may be considered for dedication under ORS 273.563 to 273.591. It means a natural heritage resource area which has substantially retained its natural character, or, if altered in character, shall in addition to its natural heritage resource values be valuable as habitat for plant and animal species or for the study and appreciation of natural features. Ref. ORS 273.566(1).

(13) "Natural Heritage Conservation Area" means an area dedicated under the provisions of ORS 273.586.

(14) "Natural Heritage Resources" means the plant community types, aquatic types (or terrestrial ecosystems and aquatic ecosystems) and unique geologic types as defined in the Oregon Natural Heritage Plan; means a unit of land or water which contains a natural resource(s).

(15) "Plan" means the Natural Heritage Plan as established in ORS 273.576, which governs the Natural Heritage Program in the selection of areas for natural heritage conservation. Ref. ORS 273.566, Oregon Laws 1981, C. 208.

(16) "Program" means the Natural Heritage Program as established in ORS 273.566, which provides for the establishment of a limited system of natural heritage conservation areas representing a full range of Oregon's natural heritage resources and includes special species of plants and animals.

(17) "Register" means the Oregon Register of Natural Heritage Resources as established in ORS 273.581. The Register contains an official list of areas which have significant natural heritage resources and special species.

(18) "Special Species" means those species of plants and animals determined by the Council to be of significant value in a Natural Heritage Conservation Area and defined in the Plan.

(19) "Wildlife" means any wild or free living vertebrate or invertebrate animal.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82, Renumbered from 141-050-0895 and 141-050-0950
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0525 Acceptance of Funds

(1) The State Land Board may accept monies for, but not limited to, documents and services under these rules.

(2) The Board may apply for and accept grants, contributions and assistance from any federal, state or local government agency and any private foundation for the purpose of carrying out the provisions of ORS 273.561 to 273.591 and Chapter 208, Oregon Laws 1981.

(3) All monies received by the Board shall be paid into the State Treasury and credited to the account of the Natural Heritage Program. Ref. ORS 273.591.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82

Or. Admin. R. 141-050-0900 Criteria for Inclusion in Register

Criteria to be included within the Register must be determined by the Council to fulfill not only the definition of a natural area but the element and site considerations within the Priorities and Criteria for Conservation in the Plan, ORS 273.563 to 273.591 and Chapter 208, Oregon Laws 1981. The following criteria will be used in evaluating a natural area proposed for inclusion in the Register:

(1) The priority for protection of the primary element objective and other elements in the site as presented in the Plan;

(2) The element occurrence(s) is an adequate representative of the type;

(3) The extent to which each natural heritage resource has retained its natural character, i.e., a measurement of the degree of human caused disturbance;

(4) The health and viability of the element occurrence(s), i.e., the ability of each element occurrence to perpetuate itself or its natural sequence of development in the area;

(5) The number of natural heritage resources or elements which will be adequately represented in the area;

(6) The degree of uniqueness, and educational and natural interpretation values of a geologic resource(s);

(7) The priority of protection given to each special species of plant or animal presented in the Plan;

(8) The contribution the particular area will make to the protection of the special species; and

(9) Manageability, i.e., the capability of being managed so as to protect and to maintain the natural values, as well as to make it available and useful for its designated purposes.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0905 Procedures for Registering

Each proposal for the Register, together with field evaluation, maps and sufficient data to complete the register file, shall be reviewed by the Council:

(1) A proposal for the Register of private land shall contain the written consent of the landowner.

(2) After review and recommendation by the Council, the Board may place a site onto the Register, or remove a site from the Register. The Board shall notify the Council of its decision.

(3) A voluntary management agreement may be developed between the Board and a private landowner, or agency, of a site on the Register, with the assistance of the Council.

(4) Any area(s) designated by a federal or state agency, having been established by public hearing, may be entered onto the Register by the Council.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0915 Register File

The Register may include file(s) of registered natural areas:

(1) The card file may include name of natural area, location, size, ownership, register category, and principal Natural Heritage Resource(s) and special species. The card file may be cross referenced by county and principal resource.

(2) The data file may include:

(a) Data Form — Comprehensive information compiled for each natural area;

(b) Instrument of Dedication — Or other documents certifying official dedication;

(d) Supportive Data — Includes maps, photographs, remote sensing imagery, species lists, field notes, reports, research papers, and references to other information available;

(e) Cross references to the Data Bank — To data file, computer and manual file consistent with data bank components;

(f) Implementation Data — Written management agreement pertaining to the natural area;

(g) Summary Sheet — A map and one page summary of information about each area which can be duplicated and circulated to appropriate authorities.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0920 Location and Maintenance of Register

The data files of the Oregon Register of Natural Heritage Resources will be located at the Oregon Natural Heritage Information Center office in Portland, OR, and will be maintained by the Council.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0925 Register Review

The Register shall be reviewed and updated every five years by the Council.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0930 Register Withdrawal

Registered natural areas may be withdrawn from the Register by the State Land Board upon the recommendation of the Council. Specific reasons must be given for withdrawal.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 26, f. 8-5-75, ef. 8-25-75

Or. Admin. R. 141-050-0935 Purpose

The purpose and scope of dedication is to establish and maintain the integrity of the Plan, and the Program, by means of written formal recognition and protection of an area of land and/or water for natural heritage conservation purposes.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82

Or. Admin. R. 141-050-0940 Instruments of Dedication

(1) Private Dedication — A private individual or organization which is the owner of any registered natural area may voluntarily agree to dedicate that area as a Natural Heritage Conservation Area by executing with the Board, following review by the Council, an instrument of dedication. Instrument provisions and policies include, but are not limited to, the following:

(a) An agreement that provides each element in the Natural Heritage Conservation Area with the most secure protection obtainable;

(b) An unlimited period of time, or a term sufficiently long to warrant dedication protection;

(d) Management policies for the site, which may include all or part of the Management of Natural Heritage Conservation Areas in OAR 141-050-0935 through 141-050-0999;

(e) Termination of dedication may occur upon written notification to the Board, including specific reasons for termination, and provision by the Council of opportunity for adequate public notice and hearing.

(2) The Instrument of Dedication of an area under private ownership shall be filed by the Board in the office of the clerk of the county in which any or all of the Natural Heritage Conservation Area is located, and shall be effective upon its recording.

(3) A copy of the dedication and management agreement(s) shall be provided to the private owner of a Natural Heritage Conservation Area.

(4) Public Agency Dedication — Any public agency may dedicate lands under the provisions of ORS 273.563 to 273.591, and the Plan, after providing the opportunity for adequate public notice and hearing by the agency.

(5) The Oregon Transportation Commission, the State Fish and Wildlife Commission, the State Board of Forestry, the State Board of Higher Education and the State Land Board shall, with the advice and assistance of the Council, establish procedures for the dedication of Natural Heritage Conservation Areas on land or water, the title of which is held by the State of Oregon, and which is under that agency's management and control. The instrument(s) of dedication and management shall contain any information or provisions as the agency and Council consider necessary to complete the dedication.

(6) Termination of the dedication of a Natural Heritage Conservation Area by a public agency requires:

(a) Provision of opportunity for adequate public notice and hearing;

(b) A finding by the agency of an imperative and unavoidable necessity due to natural disaster in the site, need of the natural resource during time of declared war, or the need of the natural resource because of extreme economic crisis of the state;

(c) A finding by that agency, with the approval of the Council that the Natural Heritage Conservation Area is no longer needed according to the guidelines of the Plan, or has permanently lost its character.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82

Or. Admin. R. 141-050-0952 Publicity

Information about a Natural Heritage Conservation Area and appropriate descriptive material may be developed and made available to interested persons. However, publicity which would tend to encourage the general public to visit a Natural Heritage Conservation Area in greater numbers than its carrying capacity shall be avoided.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0954 Reports

At regular intervals the Council shall make or cause to be made for each Natural Heritage Conservation Area a record of management activities and other influences affecting each Natural Heritage Conservation Area.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0956 Instruments

The instruments of dedication shall include, but not be limited to:

(1) The size, location, purpose, and resources of the Natural Heritage Conservation Area;

(2) A management scheme written for each Natural Heritage Conservation Area which describes:

(a) The conservation objective of the area;

(b) Proscribed, allowed and prohibited activities on the area; and

(c) Provisions as consistent as possible with the following practices in OAR 141-050-0952 through 141-050-0996, which shall, unless otherwise noted, be a part of each management scheme.

(3) Agreements between the Board and any agency necessary to establish the Natural Heritage Conservation Area.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0960 Natural Heritage Conservation Area Manager

Notwithstanding the instruments of dedication, managers of a Natural Heritage Conservation Area shall not take any action or fail to take any action which is in conflict with a statute, rule regulation or policy relating to an agency having an interest in or responsibility for the Natural Heritage Conservation Area.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0962 Fire

Prescribed fire may only be used as a management tool in such areas or situations where fire is needed to maintain or protect a Natural Heritage Conservation Area as an ecosystem type specified in the management scheme.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0964 Water Level Control

Natural Heritage Conservation Areas shall be managed to maintain their natural water levels. Water levels which have previously been altered by man may be changed if provided for in the management scheme as essential for the restoration of natural conditions.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0965 Disturbance of Natural Features

The management of Natural Heritage Conservation Areas shall not include the cutting or removal of vegetation or the disturbance of other natural features, except that which is essential to carry out the management scheme enumerated in these rules.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0966 Visitor Protection

Guard rails, fences, steps, and bridges may be provided when essential to the safety of a reasonable alert and cautious visitor.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0967 Erosion Control

Erosion and soil deposition due to disturbances of natural conditions by man within or outside a Natural Heritage Conservation Area may be controlled as provided in the management scheme.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0968 Scenic or Landscape Management

No measures or actions shall be taken to alter the natural growth or features of a Natural Heritage Conservation Area for the purpose of enhancing its neatness, beauty, or amenities.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0970 Control of Succession

Control of succession may be undertaken only if maintenance or restoration of a particular ecosystem type or preservation of threatened or endangered species is designated in the instruments of dedication as an objective of the Natural Heritage Conservation Area. Based on scientific evidence of necessity, successional control measures may be undertaken as provided in the management scheme. Such measures shall be applied with caution and only to that part of the area as is necessary.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0972 Control of Introduced Plant Species

Control of introduced plant species may be undertaken as provided in the management scheme.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0974 Control of Wildlife Populations

The control of wildlife populations on Natural Heritage Conservation Areas shall be by agreements between the Board and Oregon Department of Fish and Wildlife, or other agency. Insofar as practical any control measures applied shall be to correct those situations where wildlife populations are significantly affecting natural conditions on a Natural Heritage Conservation Area.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0976 Introduction and Management of Special Species

The introduction into or the management of a Natural Heritage Conservation Area for special wildlife species shall be by agreement between the Board and the Oregon Department of Fish and Wildlife, Oregon Department of Agriculture or other agency as provided in the management scheme.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0980 Use Tolerance

The management scheme shall set forth the use tolerance or durability of all or any portion of a Natural Heritage Conservation Area and specify the steps to be taken if overuse occurs.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0982 Collecting Permits

A person wishing to collect material from a site for the purposes of research, education or restoration within a Natural Heritage Conservation Area shall secure written permission from:

(1) The Board; and

(2) The owner of the land; and

(3) The appropriate agency if any, including but not limited to the Oregon Department of Fish and Wildlife.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
DSL 9-2008, f. & cert. ef. 12-10-08
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0990 Boundary Markers

When feasible, boundaries of a Natural Heritage Conservation Area may be made clearly evident by placing markers at corners or other strategic locations or by boundary signs.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0992 Fences

Fences and barriers may be installed as provided in the management scheme.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0994 Trails

The location and specifications of any trails may be established in the management scheme. Trails shall be adequate to provide for permitted use of a Natural Heritage Conservation Area, but otherwise kept to a minimum. The use of paving materials, footbridges and elevated walks may be permitted when necessary.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0996 Other Structures and Improvements

Signs and temporary research installations may be permitted within a Natural Heritage Conservation Area. No other structures or facilities shall be located within a Natural Heritage Conservation Area except as provided in the management scheme on these rules.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Or. Admin. R. 141-050-0998 Amendments

The Board may review and approve or disapprove any modification to the Plan submitted by the Council.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82

Or. Admin. R. 141-050-0999 Waiver of Rules

The State Land Board may waive all or any part of these rules which would prevent the establishment, management, or protection of a Natural Heritage Conservation Area if such rule is in conflict with a statute, rule, regulation, or policy relating to an agency having an interest in or responsibility for the Natural Heritage Conservation Area.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.563 - 273.591
LB 9-1982, f. & ef. 10-1-82
LB 18, f. 7-29-74, ef. 8-25-74

Division 60 OREGON RURAL REHABILITATION FUND

Or. Admin. R. 141-060-0005 Purpose

The purpose of these rules is to provide criteria and procedures to be used by the Oregon State Land Board and the Division of State Lands in distributing monies from the Oregon Rural Rehabilitation (ORR) Fund. The rules are to be construed in accordance with ORS 566.310 through 566.360 and with the 1975 Use Agreement between the Board and the U.S. Department of Agriculture, Farmers Home Administration Program.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0010 Definitions

(1) “Fund” means the Oregon Rural Rehabilitation (ORR) Fund.

(2) “Assets” means the principle of the Fund and all income, proceeds, and acquisitions derived from it.

(3) “Farms” means farms or ranches located within the boundaries of this state.

(4) “Farmers” means individuals who operate farms or ranches located within the boundaries of this state and who are residents of this state.

(5) “Board” means the Oregon State Land Board.

(6) “Division” means the Division of State Lands.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0015 Uses of the Fund

As outlined in the 1975 Use Agreement between the state and the federal government, assets of the Fund may be used for one or more of the following farm-related purposes:

(1) Loans to farmers made for acquisition or development of farms or for refinancing farm real estate debts;

(2) Loans to farmers for farm operating expenses;

(3) Loans or grants to farmers for flood prevention or restoration projects;

(4) Loans or grants for farm labor housing and related facilities;

(5) Loans or grants for educational expenses for farmers, members of their families, or farm laborers; and

(6) Loans or grants for farming-oriented projects carried out by youth organizations including Future Farmers of America, Future Homemakers of America, and 4-H Clubs.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0020 Financial Awards

(1) The Board may require retention of a minimum balance in the Fund to ensure that monies will be available for future awards.

(2) Awards shall be made only in the form of loans and only to qualified applicants for approved uses of the Fund:

(a) The loans shall be made from the loanable balance of the ORR Fund, from the interest income of the Fund, and from annual loan repayments;

(b) The number of loans shall be determined by the Board.

(3) Maximum loan amounts shall be determined by the Board prior to notifying the public of available funds.

(4) The Board shall establish the maximum interest rate for each funding cycle prior to giving public notice of available funds.

(5) The Board shall determine the interest rate to accompany each award based on the applicant’s financial ability to repay interest on the award.

(6) The Board shall determine repayment schedules on each award based on the financial ability of the applicant to repay the award and interest imposed under section (4) of this rule.

(7) The Board shall determine appropriate security for each award based on the availability and value of the security and the nature and extent of encumbrances upon such security.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0025 Needs Assessment

(1) To determine effective uses of the Fund, the Division shall, upon the request of the Board, conduct an assessment of Oregon’s farm needs before each funding cycle.

(2) The needs assessment shall include submission of a written questionnaire to the state’s major farm organizations and the holding of public hearings.

(3) Notice for such public hearings shall be mailed to the state’s major farm organizations, individuals and other organizations who have indicated an interest in the Fund; and to major newspapers, television, and radio stations throughout the state.

(4) The Division shall analyze the results of the needs assessment and recommend to the Board loan priorities for the funding cycle.

(5) The Board may establish priorities or preferred uses for each funding cycle.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0030 Requests for Applications

(1) At least 45 days in advance of the application deadline in any funding cycle, the Division shall issue a request for loan applications, which gives notice of the total amount of monies available for loans during the cycle, the maximum amount of individual loans, the maximum interest rate on loans and the Board’s priorities, if any, for loans.

(2) The Notice shall be mailed to the state’s major farm organizations; individuals and other organizations who have asked to be notified when funds are available; and to the state’s major newspapers, television, and radio stations.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0035 Loan Applications

(1) The Division shall not accept loan applications from previous recipients of awards from the Fund.

(2) Loan applications shall be submitted to the Division no later than the deadline date specified in the request for applications.

(3) Loan applications shall contain the following information:

(a) A description of the proposed project;

(b) An itemization of costs of the proposed project;

(d) Letters from at least two lending institutions stating the applicant does not qualify for loans under rates and terms which the applicant can reasonably be expected to meet;

(e) A list of real property owned by the applicant and a verified report of all financial encumbrances against the described property(ies);

(f) A financial statement of the applicant; and

(g) Any other information required under the request for loan applications and application form.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0040 Review of Applications

(1) Within 30 days after the deadline for loan applications, the Division shall evaluate each application under the following criteria:

(a) Compliance with application requirements and annual priorities or preferred uses approved by the Board;

(b) Need for the project and solution effectiveness;

(d) Applicant’s financial need.

(2) Results of the analysis shall be forwarded with recommendations for loan approvals to the Board at the next regularly scheduled meeting immediately following the evaluation.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Or. Admin. R. 141-060-0045 Funds Made Available

Upon approval by the Board, the Division shall issue approved loans subject to the terms and conditions described in OAR 141-060-0015, and such additional provisions as the director may require.

History

Statutory/Other Authority: ORS 566
Statutes/Other Implemented: ORS 566.310 - 566.360
LB 3-1987, f. & ef. 5-6-87

Division 67 RULES GOVERNING THE SALE, EXCHANGE AND PURCHASE OF LAND

Or. Admin. R. 141-067-0130 Purpose and Applicability

These rules:

(1) Establish procedures for the sale, exchange, and purchase of certain types and classifications of land and other interests including mineral and geothermal resource rights in land managed or to be managed by the State Land Board and the Department of State Lands in order to comply with all Constitutional and statutory requirements including, but not limited to: Oregon Constitution Article VIII, Section 5(2), and ORS 270, 271, 272, 273, and 274.

(2) Do not pertain to the leasing of lands or the granting of easements across lands managed by the State Land Board and the Department of State Lands, which are governed by other Department administrative rules.

(3) Apply to all land transactions (for example, sales, exchanges and purchases) for the South Slough National Estuarine Research Reserve as established in ORS 273.553.

(4) Do not apply to:

(a) The sale of submerged, submersible fronting upon the Pacific Ocean, or

(b) Land sold by the Department under the administrative rules of Procedure for the Recovery of Escheat Property (OAR chapter 141 division 030) or the Administration of Estates – Probate (OAR chapter 141 division 035)

(d) The sale of historically filled lands or new lands as administered through OAR 141-068.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0150 Definitions

(1) "Abutting" means immediately adjacent to or facing.

(2) "Apparent Successful Purchaser" is the person who is the highest acceptable bidder and who has agreed to the terms and conditions of a land sale prior to the final approval of the sale by the State Land Board.

(3) "Applicant" is any person who submits a written request to the Department to purchase or exchange state land or interests in land.

(4) "Appraisal" or "Appraisal Report" means a written statement setting forth an opinion as to the market value of the lands or interests in lands as of a specific date(s) prepared by a qualified appraiser in accordance with the Uniform Standards of Professional Appraisal Practices (USPAP) standards.

(5) "Asset Management Plan" or “AMP” is the plan adopted by the State Land Board that provides the policy direction and management principles to guide both the short and long term management by the Department of State Lands of its real estate assets.

(6) "Bargain" is a process by which the Department and another person attempt to agree to a final sale price of state land or interests in state land.

(7) "Bargain and Sale Deed" is a form of a deed that conveys real property from a seller to a buyer but does not guarantee clear title.

(8) "Bid" means a written or oral monetary commitment to purchase land or interest in land offered at the specified time and place by a person determined by the Department as provided in OAR 141-067-0220 of these rules to be eligible to participate in an auction process.

(9) "Deed" means a written, legal instrument that conveys an estate or interest in real property when it is properly executed and delivered.

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

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

(12) "Department Estimate of Value" is the monetary value of a land parcel established by the Department and approved by the State Land Board based on a critical review of the appraisal report; any review appraisal information; and other relevant or supporting data. The value may be derived, at the discretion of the Director, by considering factors or costs as are appropriate and applicable to the transaction.

(13) "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.

(14) “Filled Lands” as defined in ORS 274.705 (1) means submerged and submersible lands reclaimed artificially through raising such lands above the highest probable elevation of the tides to form dry land, by placement of a fill or deposit of earth, rock, sand or other solid imperishable material.

(15) “Formerly Submerged and Submersible Lands” are lands such as de-watered channels that once were part of the submerged and submersible lands of a navigable body of water but are no longer part of the waterway due to the dynamic forces of the waterway.

(16) “Geothermal Resources” as defined in ORS 522.005 means the natural heat of the earth, the energy, in whatever form, below the surface of the earth present in, resulting from, or created by, or that may be extracted from, the natural heat, and all minerals in solution or other products obtained from naturally heated fluids, brines, associated gases, and steam in whatever form, found below the surface of the earth, exclusive of helium or of oil, hydrocarbon gas or other hydrocarbon substances, but including, specifically:

(a) All products of geothermal processes, including indigenous steam, hot water and hot brines;

(b) Steam and other gases, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations;

(d) Any by-product derived from them.

(17) "High Bid" means the highest monetary commitment to purchase land offered by a person eligible to participate in a land sale auction.

(18) "Highest and Best Use" means the reasonably probable and legal use of vacant or an improved property which is physically possible, appropriately supported, financially feasible, and that results in the highest value.

(19) "Individual Person" means a natural person and does not include such entities as a corporation, public agency, political subdivision or association.

(20) “Land Acquisition Evaluation” is an analytical review of land or interest being considered for acquisition by the Department to determine whether or not the land or interests should be acquired by purchase or exchange. The review includes:

(a) An examination of the physical, land management, financial, natural resource, recreational and cultural resource aspects of the land or interest; and

(b) A comparison of the information from (a) above, with the acquisition criteria and strategies of the Asset Management Plan.”

(21) “Land Disposal Evaluation” is an analytical review of state land or interest being considered for sale or exchange to determine whether or not the land or interest should be retained or disposed. The review includes:

(a) An examination of the physical, land management, financial, natural resource, recreational and cultural resource aspects of the land or interest; and

(b) A comparison of the information from (a) above, with the disposal criteria and strategies of the Asset Management Plan.

(22) “Land Exchange” means a simultaneous conveyance of land or interest in state land for land or interest in land of another entity of equal value (either appraised or Department-estimate of value).

(23) “Land Exchange Agreement” is a non-binding agreement between the Department and another party that sets out the terms of the exchange proposal and the responsibilities of each party to complete the exchange. The agreement, at a minimum, describes the lands to be exchanged; assigns responsibility for completion of and payment for appraisals, surveys, land use applications, advertising, closing and any special studies including environmental audits; and establishes a reasonable time schedule for completion.

(24) "Lease" means a valid enforceable contract executed by the Department and signed by the lease applicant (called lessee) allowing the use of a specific area of state land for a specific use under specific terms and conditions specified in the lease contract and these rules.

(25) “Lessee” refers to any person having a valid lease issued by the Department.

(26) "Market Value" or "Fair Market Value" means the most probable price in cash, or terms equivalent to cash, which land or interests in land should bring in a competitive and open market under all conditions requisite to a fair sale, where the buyer and seller each acts prudently and knowledgeably, and the price is not affected by undue influence.

(27) "Mineral and Energy Resource Potential Analysis" is an analysis of the mineral and geothermal interests of a parcel to determine if any minerals or energy resources exist in commercially valuable and extractable abundance.

(28) “Mineral and Geothermal Resource Rights” are all mineral rights as defined in ORS 273.775(1), including soil, clay, stone, sand, and gravel, and all geothermal resources, as defined in 273.775(2), together with the right to make use of the surface as may be reasonably necessary for prospecting for, exploring for, mining, extracting, reinjecting, storing, drilling for, and removing, such minerals, materials, and geothermal resources.

(29) "Minimum Bid" is the lowest monetary commitment to purchase land offered from a person eligible to participate at a land sale auction that the Department will accept.

(30) "Non-Trust Land" or "Statutory Land" is state-owned land managed by the Department other than Trust Land. Examples of Non-Trust Land include state-owned Swamp Land Act Land, and submerged and submersible land (land below the line of ordinary high water) under navigable waterways.

(31) "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, or Indian Tribe.

(32) "Public Body" means the State of Oregon or any port organized under the laws of Oregon or dock commission of any city of this state.

(33) “Public Trust Values” are the rights and interests held by the public to use and enjoy submerged and submersible lands and waters of the state for fishing, navigation, recreation and commerce (also termed “jus publicum rights”).

(34) “Qualified Appraiser” is a person who is 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 engaged in the performance of the duties of the employee as defined in ORS 674.100(2)(h).

(35) "Quitclaim Deed" is a form of deed in which any interest the grantor possesses in the property described in the deed is conveyed to the grantee without warranty of title.

(36) "Rangelands" means Trust and Non-Trust Lands that are classified by the Department for management primarily for livestock grazing largely on uncultivated forage areas with limited improvements or development.

(37) "Reserved Interest" means an interest in the land that is retained by the Department from a conveyance of the title to the state land.

(38) "South Slough National Estuarine Research Reserve" is a component of the National Estuary Reserve System situated at South Slough (Coos County) established under ORS 273.553.

(39) "South Slough Management Commission" is the public body established in ORS 273.554 for the purpose of directing the management of the South Slough National Estuarine Research Reserve.

(40) "State Forester" is as described in ORS 526.005(03).

(41) "State Land" means real property, including improvements, or any interest in real property (for example, timber or minerals) managed by the State Land Board and the Department of State Lands as Trust or Non-Trust Land.

(42) "State Land Board" or "Board" means the constitutionally created body consisting of the Governor, Secretary of State and the 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.

(43) “Submerged Land” means land lying below the line of ordinary low water of all title navigable and tidally influenced waters within the boundaries of the State of Oregon.

(44) “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 waters and all islands, shore lands or other such lands held by or granted to this state by virtue of her sovereignty, wherever applicable within the boundaries of the State of Oregon.

(45) "Trust Lands" or "Constitutional Lands" is all land granted to the state for the use of schools upon its admission into the Union, or obtained by the state as the result of an exchange of Trust Land, or obtained in lieu of originally granted Trust Land, or purchased with trust funds, or obtained through foreclosure of loans using trust funds.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0155 Policies

(1) Pursuant to Article VIII, Section 5(2) of the Oregon Constitution, the State Land Board has a constitutional responsibility to manage all land (Trust and Non-Trust) 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.”

(2) In order to achieve the constitutional mandate described above and to maximize the financial return to the Common School Fund from Trust Lands, the Department will seek to obtain the full fair market value for any land or interests in land sold or exchanged.

(3) Trust Lands will be sold or exchanged in a manner that complies with state law while ensuring absolute adherence to both constitutional and Admission Act trust responsibilities as determined by the State Land Board and subject to review by the courts.

(4) The Department will follow the guiding principles and resource-specific management prescriptions contained in the Asset Management Plan.

(5) In order to carry out the directives of the Asset Management Plan the Department may initiate efforts, subject to approval of the State Land Board, to purchase, sell or exchange Trust and/or Non-Trust Lands.

(6) Any Trust Land or interest in Trust Land may be exchanged for other land or interest in land, of equal or superior value. The newly acquired land or interest in land shall become Trust Land.

(7) The Director may, with State Land Board approval, purchase, sell or exchange lands in any such size, configuration or class (e.g. forest, agriculture, commercial).

(8) The State Forester may initiate and process land exchanges involving Common School Forest Lands under its management as allowed in the management agreement between State Land Board, the Department of State Lands and the State Forester. Such land exchanges require the approval of the State Land Board.

(9) Qualified persons and agencies may apply to purchase or exchange state land or interests in state land at any time. An application fee, as required by these rules, shall be included with each application. The Department reserves the right to accept or reject any application as well as to prioritize land sale and exchange projects according to available agency funds and income potential.

(10) The Department will not sell or exchange state-owned submerged land except to facilitate remedial action conducted pursuant to a plan approved by the Oregon Department of Environmental Quality (DEQ) or the U.S. Environmental Protection Agency (EPA) and with DEQ or EPA oversight. In instances when the Department chooses to sell or exchange submerged lands under circumstances as stated in these rules, such transaction shall occur only upon a finding that the transaction will provide a net gain in public trust values to the people of Oregon when viewed alone or in conjunction with other nearby or related sites. The State Land Board must approve all sales or exchanges of state-owned submerged land.

(11) The Department recognizes that uncertainty exists as to the extent of the State’s ownership of some formerly submerged and submersible lands. Actions to determine and assert the State’s interest, if any, in formerly sub-merged and submersible land should be done in a prompt and orderly manner and as funding allows. The State Land Board authorizes the Department to negotiate settlements in lieu of litigation, when and where appropriate, with regard to the ownership of formerly submerged and submersible lands.

(12) The Department may exchange or sell submersible lands subject to the approval of the State Land Board, based on its finding that the proposed transaction will accrue a net gain of public trust values to the people of Oregon when viewed alone or in conjunction with other nearby or related lands within the control of the applicant.

(13) The State Land Board authorizes the Director or designee to issue such certificates of sale, deeds or conveyances as are necessary to carry out the land transactions approved by the State Land Board in conformance with these rules. Such instruments shall include, but not be limited to bargain and sale, limited warranty and quitclaim deeds, and be drawn in a manner to transfer any and all rights and interests to the buyer/exchange partner that the Department may hold or has agreed to convey.

(14) Land or interest in land sold to another state agency or political subdivision under the provisions of ORS 270.100 shall be used for public purpose or benefit, and not be sold for resale to a private purchaser. Restrictions to further this policy shall be included in the deed and be enforceable through such terms as, but not limited to, reversionary clauses.

(15) The State Land Board shall recognize and adhere to all terms and conditions of valid existing leases and easements as they affect proposed land sales or exchanges.

(16) The State Land Board shall retain all mineral and geothermal resource rights (as defined) except as allowed under OAR 141-067-0320.

(17) The Department will seek certification of these rules by the Department of Administrative Services (DAS) as permitted under OAR 125-045-0210. These rules are intended to carry out land transactions in a manner consistent with DAS rules for the Disposition and Acquisition of Real Property Interests (OAR 125-045).

(18) DAS approval is not required for:

(a) Sale of Non-Trust Land (except those lands sold at less than the appraised value);

(b) Sale of Trust Land;

(d) Any release, sale or exchange of mineral and geothermal resource rights.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09

Or. Admin. R. 141-067-0160 Eligibility to Apply to Purchase or Exchange Land

Unless otherwise indicated in these rules, any person who is at least 18 years of age and who is a citizen of the United States or who has declared an intention to become a citizen, may apply to purchase or exchange state land

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0165 Application and Application Processing Fees

(1) An application to buy or exchange land subject to these rules must be submitted on a form provided by the Department.

(2) Each land sale applicant must submit with the application a correct and concise description of the land(s) involved in the requested transaction.

(3) A single application may include multiple land parcels.

(4) The appropriate application fee must be included with the application.

(5) The application fee for all land sales or land exchanges is $750 per application. However, the Director may determine additional application fees are necessary for applications covering multiple parcels.

(6) The fee for the assignment of a certificate of sale is $750.

(7) The application fee for the release of mineral or geothermal resource rights to a qualified owner under OAR 141-067-0320 of these rules is $150.

(8) All application processing fees are non-refundable except as noted in these rules.

(9) Incomplete applications or those received from ineligible applicants will be returned.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09

Or. Admin. R. 141-067-0170 Land Exchanges

(1) Except as provided in OAR 141-067-0300 or as limited by 141-067-0155, the Department may exchange any lands or interests in lands for any other lands to meet objectives of the Asset Management Plan or the South Slough National Estuarine Research Reserve Management Plan. Exchanges shall be made on the basis of value. The Department may accept a monetary payment or reserve rights as part of the consideration to the extent required for a fair transaction.

(2) The Department may initiate a land exchange without requiring that an application be submitted.

(3) Any person, eligible to do so, may submit an application to the Department to initiate a land exchange. The application must be submitted on a form provided by the Department.

(4) The Department will notify the lessee, if any, by registered or certified mail and the applicant of receipt of the land exchange application. Within a reasonable time after receipt of the land exchange application, the Director will conduct an initial review of the application and determine the action to be taken including but not be limited to:

(a) Rejecting the application. A rejected application shall be returned to the applicant with the reasons for its rejection clearly stated. The lessee, if any, will also be notified. An additional non-refundable application fee will not be required for an application that is resubmitted within 120 calendar days of its rejection.

(b) Accepting the application for further processing; or

(5) Following initial review and acceptance of the application, the Department will:

(a) Complete a Land Disposal Evaluation and Land Acquisition Evaluation of the lands involved in the exchange;

(b) Initiate the applicable elements of the public interest review process.

(6) If the Director determines to proceed with the land exchange proposal, the Department will negotiate a Land Exchange Agreement with the applicant. The State Land Board shall approve the Land Exchange Agreement.

(7) The Department may group together similar land exchange applications for more efficient processing. The willingness of applicants or other interested parties to pay for or share in the cost of appraisals, surveys, public notices or other expenses may be a factor in the Department’s prioritization of land exchange proposals.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0180 Public Interest Review Process; Public Meetings and Hearings

(1) After an application has been accepted for further processing or at anytime the Department decides to sell or exchange land the Department will notify, in writing, all affected lessees (by registered or certified mail) and adjacent lessees of a potential land sale or land exchange.

(2) Lessees affected by a land exchange proposal will be given notice that if a written protest is submitted by an affected lessee to the Department within 20 calendar days of the mailing a public hearing will be held on the exchange proposal. Such a hearing will be scheduled as described in OAR 141-067-0180(7).

(3) The Department will notify, in writing, all adjacent landowners, and all affected school districts, city and county governments, including the county board of commissioners of a potential land sale or land exchange. The notice will offer all entities and persons an opportunity to comment on the proposal.

(4) Notify, in writing, those individuals and public interest groups that have indicated, through prior contact with the Department, an interest in potential land sales or land exchanges.

(5) Notify the Department of Administrative Services as described in OAR 141-067-0190.

(6) The Department may hold a public meeting on any land sale or exchange proposal to solicit public comment and explain the proposal. The Department will give 45 calendar days notice of any such meeting(s) to adjacent land owners, lessees, interested parties, agencies and local governments by mail and press releases or public notice in a newspaper of general circulation within the county in which the proposal is located. The public meeting information will also be posted on the Department’s website.

(7) The Department will hold a public hearing on the proposal if it receives a timely written protest of a land exchange proposal from an affected lessee. The hearing will be cancelled or not scheduled if, anytime after the lessee’s written protest is received, the Department rejects the land exchange proposal or the applicant withdraws the application. The hearing will be held at least 45 calendar days, but not more than 90 calendar days, after the written protest has been received by the Department. All affected lessees of land considered for exchange will be notified of the hearing by certified or registered mail. All others will be given notice in the same manner as described in OAR 141-067-0180(6). All comments by the lessees or their representatives and all other interested parties will be recorded and compiled in the hearing record for review by the State Land Board or Director. The affected lessee and all registered public hearing attendees will be notified of any decision of the Director or the State Land Board resulting from the public hearing.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0190 Compliance with the Department of Administrative Service (DAS) Rules for the Disposition and Acquisition of Real Property

(1) Before acquiring any land by purchase or exchange or selling or exchanging any land or interests in land, the Department will notify the Department of Administrative Services Facilities Division (DAS) on an approved form. DAS will notify all state agencies and political subdivisions of the anticipated transaction.

(2) The Department will seek certification of these rules (OAR 141-067) as permitted by 125-045-0210.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0195 Resolving Ownership of Formerly Submerged and Submersible Lands

(1) Any person interested in resolving ownership of formerly submerged and submersible lands may meet with the Department to discuss the facts concerning the creation and ownership of the lands in question.

(2) Based on the facts presented, as well as the Department’s own investigation, the Department may do the following:

(a) Agree that the Department has no interest in the formerly submerged or submersible land;

(b) Determine who is entitled to purchase the formerly submerged or submersible land under these rules;

(d) Enter into negotiation in lieu of litigation with the person to resolve the ownership question;

(e) Request more information from the landowner or person; or

(f) Pursue other actions aimed at resolving the ownership question.

(3) Factors the Department may weigh in determining its course of action include but are not limited to:

(a) The chronological history of the creation of the formerly submerged or submersible land;

(b) The identity of the person(s) who created the formerly submerged or submersible land;

(d) The identity of the current riparian owner;

(e) The cause for the change in the location of the waterway; and

(f) The relative strength of the Department’s ownership claim.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09

Or. Admin. R. 141-067-0215 Sale of Submerged and Submersible Lands

(1) Any person may submit an application to purchase submerged and submersible land. The application must be submitted on a form provided by the Department. A non-refundable application fee in the amount shown in OAR 141-067-0165 must be included with the application.

(2) The sale of submerged lands is limited to lands subject to remedial environmental action pursuant to a plan approved by DEQ or EPA.

(3) Applications will be processed in accordance with the applicable provisions of OAR 141-067-0220 and 141-067-0155.

(4) The applicant will be required to acknowledge the character of the land being applied for and the title interest in the land held by the Department. Further, the applicant must waive all claims against the State, including but not limited to claims for the return of the purchase price, if all or part of the land are determined to not belong to the Department.

(5) Following notice that the land is available for sale, the applicant, at their own expense, shall have a survey of the land prepared. The survey must:

(a) Be prepared by a registered land surveyor approved by the Department in writing before the start of the survey work;

(b) Connect and conform to adjacent surveys acceptable to the Department, to the extent reasonably practicable; and

(c) Be notarized and submitted to the Department along with a hard copy map that is also notarized and electronic file in a format of the Department’s choosing.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - RS 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09

Or. Admin. R. 141-067-0220 General Procedures for Land Sales (Except OAR 141-067-0215)

(1) These general procedures apply to the processing of all land sale applications, except sales of formerly submerged and submersible land (under 141-067-0300), and release of mineral and geothermal resource rights to owners of residential real property (under 141-067-0320). The Department may offer land for sale at any time without having first received an application from an individual or person. (Refer to 141-067-0230 for additional requirements for the sale of rangelands.)

(2) Any person who is eligible to do so as described in OAR 141-067-0160, may submit an application to purchase state land.

(3) Upon receipt of the application, the Department will conduct an initial review of the land sale application, including but not limited to:

(a) A determination whether or not the land described in the land sale application is a legal lot of record as described in ORS Chapter 92;

(b) A determination, of the Department 's rights and interests in the land or interests in land described in the land sale application, based, if necessary, on a preliminary title report by the Department or its agent;

(d) The results of the DAS notice process, if applicable, as described in OAR 141-067-0190;

(e) The applicable elements of the public interest review process as described in OAR 141-067-0180 of these rules; and

(f) A determination of whether the proposal is consistent with the policies set forth in OAR 141-067-0155.

(4) The Department will notify the lessee, if applicable (by registered or certified mail) and the applicant of receipt of the land sale application. Within a reasonable time after receipt of the sale application and following completion of the initial review, the Director will determine the action to be taken including, but not limited to:

(b) Accepting the application for further processing; or

(5) The Department may group together similar land sale applications for more efficient processing and to attract more buyer interest. The willingness of applicants or other interested parties to pay for or share in the cost of appraisals, surveys, advertising or other expenses may be a factor in the Department’s prioritization of land sales applications for processing.

(6) If following the initial review of the land sale application is accepted for further processing, the Director will within a reasonable time:

(a) Classify as "available for sale" the land under consideration; or

(b) Not classify the lands under consideration as "available for sale." If the decision is to not classify the land as "available for sale" the Department will terminate further processing of the land sale application. As soon as possible after the Director's determination, the Department will notify the applicant and, if applicable, the lessee (by registered or certified mail) of the Director’s decision.

(7) If the lands are classified as "available for sale":

(a) The Director will determine the method of sale for the land as described in OAR 141-067-0270 and request the State Land Board’s approval of the land sale;

(b) The Department, its agent, or the applicant will, take such action as is necessary to obtain a legal lot of record determination as described in ORS 92 before the final closing of the sale;

(c) The Department will exercise the its authorities under any applicable lease contract provisions allowing for the land to be sold without the encumbrance of the lease;

(d) The Department, its agent, or the applicant, will obtain a land appraisal in accordance with the provisions of OAR 141-067-0310; and

(e) The Department will determine the Department Estimate of Value as the minimum bid, reserve price or final purchase price, as applicable, depending on the approved method of sale.

(8) The Department will conduct the sale in accordance with the method of sale established by the Director and approved by the State Land Board.

(9) The Department, its agent or the applicant will give public notice of the proposed land sale by publication in a local newspaper of general circulation within the county where the proposed land sale is located and on the Department’s website. The newspaper notice will be published for at least one day per week for at least three consecutive weeks prior to the sale. The Department will notify all landowners and lessees of land adjacent to the land being offered for sale of the sales procedure and all pertinent information concerning the proposed land sale.

(10) The Department may, at any time prior to the closing, withdraw from the sale process any or all of the lands subject to the land sale. If lands are withdrawn from sale under these rules, any monetary deposit on the land withdrawn will be refunded to the owner.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0230 Sale Procedures for Rangelands/Common School Grazing Lands

(1) After rangeland is determined to be "available for sale" as described in OAR 141-067-0220, if a forage lessee of the land has not already done so, the forage lessee may apply, on a form prescribed by the Department, to purchase the lands.

(2) A forage lessee is qualified to purchase rangeland it leases if the forage lessee meets all of the following requirements:

(a) The forage lessee is an individual person;

(b) The forage lessee is a resident of Oregon; and

(c) The forage lessee owns, in fee simple, land immediately adjacent to the land classified as "available for sale" (lands are considered to be adjacent if their boundaries are common or intersect at a common point); and

(A) The forage lessee is in compliance with all lease terms and conditions; or

(B) The forage lease affords the lessee an opportunity to purchase the leasehold.

(3) Based on the forage lessee's representation of eligibility as shown on the application form, the Director will certify that the forage lessee is qualified to purchase rangeland under OAR 141-067-0230(2). The Department will promptly notify the forage lessee of the Director's decision by registered or certified mail. The Director will advise the forage lessee of deficiencies in the event the forage lessee is not certified as eligible in the land sale process as described in 141-067-0230(2).

(4) If a qualified eligible forage lessee does not respond to the Department 's notice as described in OAR 141-067-0220(4) within 90 calendar days of the sending date of the registered or certified mail notice, then the forage lessee will be ineligible to participate in the land sale process described in 141-067-0270(2)(e).

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0250 Type of Deed; Payments for Land Purchases; Contracts; Default Issuance of Deed; Certificates of Sale; Assignments; Recording

(1) The Department will offer the type of deed (for example: quitclaim deed or bargain and sale deed) it deems to be the most legally defensible and best represents the known rights and interests held by the State Land Board in the land or interest in land being conveyed in the transaction.

(2) The Department may impose additional requirements or conditions on the issuance of the deed, including but not limited to indemnification of and waiver of claims against the Department and State of Oregon.

(3) When the land sale or land exchange process has been completed, including the payment of the purchase price or fulfillment of the terms of the land sale or land exchange agreement, the Director will execute and deliver to the purchaser a deed in a manner and form prescribed by these rules. The Department may choose to conduct closing through an escrow agent.

(4) When a purchaser of land (other than rangeland) desires to make payments in installments the Department or its agent shall, upon receipt of one-fifth or 20 percent of the purchase price of the land, deliver to the purchaser a certificate that the purchaser has contracted to purchase the land. Upon performance under the contract or payment of three-fifths or 60 percent of the purchase price and the receipt and documentation of a note or loan, and upon surrender of the certificate of sale, the purchaser, or their heirs or assigns of the purchaser, shall be issued a deed for the property by the Department or its agent.

(5) A purchaser of rangeland deemed eligible under OAR 141-067-0230 must pay at least 10% of the purchase price at the time of purchase, and may then enter into a 10-year land sale contract with the Department to pay the remainder in 10 equal annual installments with the interest rate fixed by the Department in accord with ORS 327.425.

(6) All assignments of certificates of sale shall be executed and acknowledged in the same manner as a deed to land or real property. All requests for assignment of certificates shall be in writing. Written consent of the Department is required for any assignment. The Department shall issue the deed to the assignee upon full payment of the purchase price or the remaining balance of the land sale contract, and receipt of the certificate of sale.

(7) The Department will record, in the appropriate county office, any and all deeds it receives as a result of a land exchange or purchase.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0260 Disposition of Funds Received for Trust Land Sales and Funds from Trust Land Exchanges

The proceeds of any Trust land sale or from land exchange equalization payments for Trust lands shall be deposited in the land revolving fund of the Common School Fund as established in ORS 273.413, unless directed otherwise by the Director.

History

Statutory/Other Authority: ORS 270.005-190, 273.045, 273.245-247, 273.251-311, 273.316-321, 273.413-456, 274.040, 274.905-940 & 274.960-985
Statutes/Other Implemented: ORS 270.005-190, 273.045, 273.245-247, 273.251-311, 273.316-321, 273.413-456, 274.040, 274.905-940 & 274.960-985
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0270 Methods for Conducting Land Sales

(1) The director shall recommend to the State Land Board the method for conducting a land sale based upon the policies described in OAR 141-067-0155 and as set forth in these rules.

(2) The following methods shall be used:

(a) Direct sale at Department Estimate of Value. This method is generally used for the sale of: Certain Trust and Non-Trust land transactions involving agencies of the federal government with powers of eminent domain.

(b) Direct sale at Department Estimate of Value with reversionary rights, existing leases or other reserved interests, limitations and encumbrances. This method is used principally for land sales to state agencies and political subdivisions and is aimed at assuring that the land will continue to be used for public purposes after it has been transferred.

(c) Direct sale to a qualified lessee, or if not applicable, to an adjacent landowner at a sale price based on a Department Estimate of Value.

(d) Sale to the highest bidder via oral or sealed bid auction or combination thereof; minimum bid or reserve price approved by the Director. This method is used for all classes of Trust and Non-Trust land except as otherwise described in these rules.

(e) Sale to the highest bidder via oral or sealed bid auction with an eligible lessee having the right to bid last to exceed the final high bid; minimum bid or reserve price established by the Director based on Department Estimate of Value. This method is used for qualified rangeland lessees as described in OAR 141-067-0230 or for those lessees with lease contract terms and conditions that clearly and explicitly provide this opportunity.

(f) Negotiated sale. This method allows the Department to negotiate or bargain for the highest sale price possible from among interested parties.

(g) Brokered Sale. This method allows for the Department to offer land through a State of Oregon licensed real estate broker at a fair market value and to negotiate the final sale price with a buyer through the broker. A brokerage fee may be paid to the Department’s broker or the buyer’s agent or both in accordance with generally accepted real estate practices. This method is used when local real estate market conditions indicate and the land being offered best fits disposal through a more traditional marketing approach.

(3) The Department reserves the right, but not the obligation, to offer all property to lessees, followed by adjacent landowners and others when the Director determines that doing so will provide the greatest benefit for the people of the state and not conflict with the Department’s constitutional and statutory obligations.

(4) The Director will report to the State Land Board the land sale method chosen for each sale and the reasons supporting the choice of sale method. The land sale method must be approved by the State Land Board.

(5) If the sale method selected involves an auction, the Department will establish the sale procedures to be followed including, but not limited to: the form and schedule for bid submittals; the amount of deposit required; the time and location of the bid openings and/or oral auction; the minimum bid or reserve price; preliminary terms and conditions of sale; payment options and any additional costs to be borne by the successful purchaser. The Department will fully disclose these procedures and all other pertinent information to the public as well as give ample advance public notice of the auction.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0300 Procedures for Resolving Claims to Formerly Submerged or Submersible Land (does not apply to lands described in OAR 141-067-0215)

(1) The Director may issue a quitclaim deed to resolve a cloud of title over formerly submerged and submersible land. Such land may be, but is not limited to, areas that once were submerged or submersible land but are no longer connected to or a part of a state-owned (navigable) body of water due to the dynamic forces of the waterway. Such lands may be disposed of after the Department has completed a review of the facts and determined the extent, if any, of the state's ownership interest in the land.

(2) Any person may submit an application to resolve a claim to formerly submerged and submersible land. The application must be submitted on a form provided by the Department and include the appropriate application fee. Upon receipt of the application, and in order to determine the extent, if any, of the state’s ownership claim, the Department will conduct an initial review of the application, including but not limited to:

(a) A determination whether or not the parcel(s)/lot(s) described in the land sale application are legal lots of record as described in ORS Chapter 92;

(b) A determination, based, if necessary, on a preliminary title report conducted by the Department or its agent, of the Department 's rights and interests in the land or interests in land described in the land sale application; and

(d) The results of the DAS notice process, if applicable, as described in OAR 141-067-0190;

(e) The applicable elements of the public interest review process as described in OAR 141-067-0180.

(3) The Department will notify any lessees (by certified or registered mail) and the applicant of the receipt of the sale application within 90 calendar days. Based on the initial review of the application, the Director will take, but not be limited to, the following actions:

(a) Reject the application. A rejected application will be returned to the applicant with an explanation of the reasons for its rejection clearly stated. An additional non-refundable application fee will not be required for an application that is resubmitted within 120 calendar days of its rejection;

(b) Accept the application for further processing; or

(4) Upon acceptance of the application for further processing the Department and the applicant will meet to negotiate an agreement establishing the terms and conditions of the transaction, the responsibilities of each party and the transaction schedule. The Department may impose additional requirements or conditions on the issuance of the deed, including but not limited to indemnification of waiver of claims against the Department and the State of Oregon.

(5) The Department may, where feasible and deemed to be in the best interests of the public to do so, require the quitclaim grantee to issue a similar quitclaim to the Department for the existing submerged and submersible land fronting and abutting the grantee's land on the waterway as it exists at the time of the transaction.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0310 General Requirements for Appraisals

(1) Appraisals conducted for land sales, purchases or exchanges shall comply with the following requirements:

(a) Be conducted by a State of Oregon-licensed appraiser familiar with the type of property to be appraised and in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP) standards.

(b) Unless directed otherwise by the Department, the appraisal shall estimate the fair market value of the property based on its highest and best use, taking into account the contributory value of all offered interests in the property such as water rights, minerals, or timber to the extent that such interests are consistent with the highest and best use of the property.

(c) The appraisal report must include sufficient description of the property, highest and best use analysis, valuation methodology and support materials to fully document and justify the appraiser’s estimate of fair market value.

(d) The Department may, based on the particular use of the appraisal, impose additional requirements or conditions on the appraisal.

(2) For land sales, purchases or exchanges where the estimated fair market value of the lands or interest in lands is $100,000 or less, the Department may utilize a “desk appraisal” or a “letter opinion of value” as the Appraisal required under these rules.

(3) For purposes of this section, a “desk appraisal” is a written statement setting forth an opinion as to the market value of the lands or interest in lands as of a specific date. A desk appraisal conducted for land sales, purchases or exchanges shall comply with the following requirements:

(a) The desk appraisal must be conducted by an employee of the Department. A desk appraisal need not be prepared in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP), as desk appraisals performed by an employee of the Department are not required to be performed by State of Oregon-licensed appraiser pursuant to ORS 674.100(2)(h).

(b) Unless directed otherwise by the Department, the desk appraisal shall estimate the fair market value of the property based on its highest and best use, taking into account the contributory value of all offered interests in the property such as water rights, minerals, or timber to the extent that such interests are consistent with the highest and best use of the property.

(c) The desk appraisal must include a sufficient description of the characteristics of the property, a highest and best use analysis, a description of the valuation methodology, and a description of the support materials utilized to fully document and justify the estimate of fair market value. The description of the characteristics of the property, and description of the characteristics of properties used as comparison to the property, may be based on aerial and topographic photographs and maps and on generally accepted property data resources, such as the United States Department of Agriculture — Natural Resources Conservation Service, county assessor tax lot information, multiple listing services, and similar resources. Field inspections of the property and of the properties used as comparison to the property are not required as part of the desk appraisal.

(4) For purposes of this section, a “letter opinion of value” is a written statement from a real estate professional licensed under ORS 696 setting forth an opinion as to the market value of the lands prepared in accordance with the requirements of OAR 863-015-0190(3).

History

Statutory/Other Authority: OAR 141-167-0005 - 141-067-0120, 125-045, ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: OAR 141-167-0005 - 141-067-0120, 125-045, ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 1-2013, f. 2-14-13, cert. ef. 3-1-13
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0320 Procedures for the Sale, Exchange or Release and Transfer of Mineral and Geothermal Resources

(1) For the purposes of OAR 141-067-0320(2) and (3):

(a) “Owner” means:

(A) The record holder of the fee title interest in residential real property; or

(B) The contract purchaser of residential real property.

(b) “Residential Real Property” means real property that is sold by the Department for the State Land Board and is located:

(A) Inside an urban growth boundary; or

(B) Within an area zoned for residential use on a lot or parcel that is three acres or smaller in size.

(2) An owner may apply to the Department for the release and transfer to the owner the reserved right to mineral and geothermal resources. Upon application by the owner, the Department will release and transfer to the owner the reserved rights to mineral and geothermal resources within 30 calendar days after the first Land Board meeting that is at least 60 calendar days after the Department received the completed application for the release and transfer of the rights, unless the Land Board finds that a significant mineral or geothermal resource exists. If the Land Board finds that a significant mineral or geothermal interest exists, the owner may:

(a) Offer to purchase the resource for the value of the resource; or

(b) Withdraw the application.

(3) If the Land Board finds that a significant mineral or geothermal resource exists and the owner offers to purchase the resource for the value of the resource:

(a) The Land Board will determine the value of the resource on the basis of an appraisal conducted by a state certified appraiser under ORS 674.310 or by a geologist who is registered under 672.505 to 672.705 and qualified to assess the value of mineral and geothermal deposits.

(b) The Land Board may not:

(A) Require an owner to obtain an appraisal, as described in (a) above; or

(B) Require an owner to pay the cost of an appraisal conducted at the request of the Land Board.

(4) The Department will charge a fee of $150 to process mineral resource release and transfer applications for owners.

(5) Except as provided in subsections (1) through (4), if the rights to mineral and geothermal resources are to be included in a proposed land sale or land exchange, or the owner of the surface interest requests that the Department release and transfer its reserved right to mineral or geothermal resources, the Department will determine the mineral or geothermal potential of the property.

(6) The Department of Geology and Mineral Industries may conduct the mineral and geothermal potential analysis for the Department.

(7) For proposed land exchanges, the mineral and geothermal potential of both the land exchange partner's land and the Department’s land are to be evaluated.

(8) When the Department deems it necessary, a mineral and geothermal appraisal may be required for a land exchange or land sale.

(9) The State Land Board may approve of the release and transfer of mineral and geothermal resources when the mineral potential evaluation (including an appraisal of values as required by the Director) reveals no or extremely limited resource potential in any lands being considered for sale or exchange; and the State Land Board deems that the disposal of mineral and geothermal resources is in the long term best interests of the Trust.

(10) When mineral or geothermal resources are part of a land exchange, the lands to be exchanged must have roughly equivalent mineral or geothermal resource potential.

(11) When mineral or geothermal resources are included in any sale they shall be accorded a monetary value and the Department shall be compensated for their sale.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0330 Procedures for Purchases including Donations of Land or Interests in Land

(1) Land or interests in land to be purchased for addition to the South Slough National Estuarine Research Reserve must be approved by the South Slough Commission and the State Land Board.

(2) Land or interests in land to be acquired by the Department through either purchase or donation must be approved in advance by the State Land Board and must be consistent with the policies set forth in the Asset Management Plan and OAR 141-067-0140.

(3) In acquiring land or interests in land by purchase, the Department will pay an amount equal to the price a prudent purchaser would pay under similar circumstances.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Or. Admin. R. 141-067-0340 Appeals

Any applicant may request reconsideration of a decision of the Department or the State Land Board relating to 141-067.

(1) The request must be received by the Director no later than 30 calendar days after the delivery of the decision.

(2) The Director will review the request within 60 calendar days after the date of delivery of the request.

(3) The Director may recommend to the State Land Board either that the decision be modified based on the merits of the request, or that the Land Board authorize initiation of a contested case proceeding.

(4) There is no opportunity to request reconsideration of a land sale or State land exchange after the transaction has occurred and title has passed from the State of Oregon to the purchaser or land exchange partner.

(5) If the Director recommends that the State Land Board initiate a contested case proceeding, the State Land Board will select a hearing officer and proceed pursuant to ORS 183.413 through 183.470.

History

Statutory/Other Authority: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
Statutes/Other Implemented: ORS 270.005 - 270.190, 273.045, 273.245 - 273.247, 273.251 - 273.311, 273.316 - 273.321, 273.413 - 273.456, 274.040, 274.905 - 274.940 & 274.960 - 274.985
DSL 6-2009, f. & cert. ef. 7-1-09
DSL 2-2002, f. 4-12-02, cert. ef. 7-1-02

Division 68 IDENTIFICATION, NOTIFICATION, SALE AND EXCHANGE, CLEARING TITLE, OR RESERVATION OF HISTORICALLY FILLED LANDS, AND APPROVAL TO CREATE, SELL, EXCHANGE OR RESERVE NEW LANDS

Or. Admin. R. 141-068-0000 Purpose and Applicability

These rules:

(1) Govern the identification of State’s interest in historically filled lands by the Department of State Lands (Department).

(2) Govern the notification process of State’s interest in historically filled lands by the Department.

(3) Govern the process to clearing title to historically filled lands and new lands.

(4) Govern the sale, exchange and reservation of historically filled lands by the Department.

(5) Govern the creation, sale, exchange and reservation of new lands by the Department.

(6) Do not govern the land sale or exchange of state-owned trust lands, or mineral and geothermal resource rights as administered in OAR 141-067.

(7) Do not govern the issuance of state leases, easements or other local, state or federal permits for historically filled lands and new lands.

(8) Do not govern the placement of rip-rap; structures constructed by a drainage or diking district; tidegates; wharves; or other uses of state-owned submerged and submersible lands as administered in OAR 141-082.

(9) Do not govern the placement of bridges or other crossings of state-owned submerged and submersible lands as administered in OAR 141-122 or OAR 141-123.

(10) Do not govern the removal or fill of material in waters of the state as administered in OAR 141-085.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 5-2020, minor correction filed 05/12/2020, effective 05/12/2020
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0010 Definitions

(1) "Abutting" means immediately adjacent to or facing.

(2)"Affected Property Owners" refers to those people listed in the records of the county assessor as owners of property fronting, abutting or underlying, or having a recorded easement allowing access to a waterway segment at the time that the Department undertakes a State’s interest study of the subject waterway.

(3) "Applicant" is any person who submits a written request to the Department to create, purchase or exchange land or interests in land.

(5) "Deed" means a written, legal instrument that conveys an estate or interest in real property when it is properly executed and delivered.

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

(7) "Declaration" is a written statement by the Land Board concerning the nature and extent of the state's interest to historically filled lands in a waterway segment under study.

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

(9) "Easement" is an authorization granted that gives a person the use of a specifically designated parcel of 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.

(10) “Fair Market Value” means the most probable price, as of a specified date, in cash, or in terms equivalent to cash for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller acting prudently, knowledgeably, and assuming that neither is under undue duress.

(11) “Geothermal Resources” as defined in ORS 522.005 means the natural heat of the earth, the energy, in whatever form, below the surface of the earth present in, resulting from, or created by, or that may be extracted from, the natural heat, and all minerals in solution or other products obtained from naturally heated fluids, brines, associated gases, and steam in whatever form, found below the surface of the earth, exclusive of helium or of oil, hydrocarbon gas or other hydrocarbon substances, but including, specifically:

(a) All products of geothermal processes, including indigenous steam, hot water and hot brines;

(b) Steam and other gases, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations;

(d) Any by-product derived from them.

(12) “Highest and Best Use of Filled Land” means to treat the land (not including improvements) as if it were a part of the adjacent, or larger upland parcel, rather than an isolated land-locked parcel, unless the parcel is solely created by filled land. Filled land must be appraised with this definition unless the Department has given specific instructions to the contrary.

(13) “Historically Filled Lands” as defined in ORS 274.905, means those lands protruding above the line of ordinary high water, whether or not connected with the adjoining or opposite upland or riparian lands on the same side of the body of water that were created upon submersible or submerged lands by artificial fill or deposit before May 28, 1963. Historically filled lands does not include bridges, wharves and similar structures constructed upon submersible or submerged lands by other than artificial fill or deposit.

(14) “Interest” means right, title, or legal share in something.

(15) “Interested persons” means any person that has requested to be notified of certain Department actions within an area, or who has previously provided comment on a similar agency action.

(16) “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.

(17) “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.

(18) "New Lands" as defined in ORS 274.905 means those lands protruding above the line of ordinary high water, whether or not connected with the adjoining or opposite upland or riparian land on the same side of the body of water, that were created upon submersible or submerged lands by artificial fill or deposit on or after May 28, 1963 and not including bridges, wharves and similar structures constructed upon submersible or submerged lands by other than artificial fill or deposit.

(19) "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, or Indian Tribe.

(20) “Public Interest” as used in ORS 274.940 includes the values, rights and interests that the public holds in historically filled lands for recreation, conservation of resources, or navigation.”

(21) "Quitclaim Deed" is a form of deed in which any interest the grantor possesses in the property described in the deed is conveyed to the grantee without guaranteeing that interest or its title.

(22) "Real Market Value" or “RMV” means the current real market value of the property (not including improvements) assigned to the land or comparable tax lot by the county tax assessor.

(23) "Reserved Interest" means an interest in the land that is retained by the Department from a conveyance of the title to the state land.

(24) "State Land Board" or "Board" means the constitutionally created body consisting of the Governor, Secretary of State and the 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.

(25) “Submerged Lands” as defined in ORS 274.005, means lands lying below the line of ordinary low water of all navigable waters within the boundaries of this state as heretofore or hereafter established, whether such waters are tidal or nontidal.

(26) “Submersible Lands” as defined in ORS 274.005, means lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters and all islands, shore lands or other such lands held by or granted to this state by virtue of her sovereignty, wherever applicable, within the boundaries of this state as heretofore or hereafter established, whether such waters or lands are tidal or nontidal.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0020 General Provisions

(2) 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.

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

(5) The Department recognizes that uncertainty exists as to the extent of the State’s interest in historically filled lands. Actions to determine and assert the State’s interest, if any, in historically filled lands should be done in a prompt and orderly manner and as funding allows. The State Land Board authorizes the Department to negotiate settlements in lieu of litigation, when and where appropriate, with regard to the ownership of historically filled lands.

(6) The State Land Board authorizes the Director to issue land sale contracts, deeds or conveyances as are necessary to carry out the land transactions approved by the State Land Board in conformance with these rules. Such instruments shall include, but not be limited to quitclaim deeds, and be drawn in a manner to transfer any and all rights and interests (excluding mineral and geothermal resource rights) to the buyer/exchange partner that the Department may hold or has agreed to convey.

(7) Administrative fees delineated in these rules shall be adjusted on January 1 of every year based on Portland-Salem, OR-WA Consumer Price Index for All Urban Consumers for All Items as published by Labor Statistics of the US Department of Labor. The calculated adjustment shall be rounded up to the nearest dollar.

(8) The real market valuations described in OAR 141-068-0070(9), (10), and (11) rules shall be adjusted on January 1 of every year based on Portland-Salem, OR-WA Consumer Price Index for All Urban Consumers for All Items as published by Labor Statistics of the US Department of Labor. The calculated adjustment shall be rounded up to the nearest $10 dollars.

(9) The State Land Board authorizes the Director to (without further State Land Board approval) issue land sale contracts, deeds or conveyances as are necessary to carry out the land transactions, in conformance with these rules, for:

(a) Historically filled lands where no State interest is determined to exist; and

(b) Historically filled lands that are determined to be of low value and low public interest values are present per OAR 141-068-0080(5)(d).

(10) The State Land Board shall recognize and adhere to all terms and conditions of valid existing leases and easements as they affect proposed land sales or exchanges.

(11) The State Land Board shall retain all mineral and geothermal resource rights (as defined) except as allowed under OAR 141-067-0320.

(12) It is the policy of the State Land Board that public access to a waterway shall be preserved to the extent practicable. The Department may require a public easement to, or along the waterway, as a condition of a land sale.

(13) Pursuant to ORS 274.950, the State Land Board shall not assert title to historically filled lands after December 31, 2025 unless the Board had made a declaration of State’s interests prior to the date.

(14) Excluded from OAR141-068-0020(13) are:

(a) Historically filled lands over which the State Land Board asserted title prior to January 1, 2016;

(b) Historically filled lands fronting upon the Pacific Ocean; or

(c) Lands in the portion of the Lower Willamette River that includes the Portland Harbor Superfund Site as delineated by the United States Environmental Protection Agency.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0030 Identification of State’s Interest in Historically Filled Lands

(1) Upon direction from the Board to determine whether any interest remains or is vested in the State of Oregon with respect to historically filled lands in a segment of a waterway, the Department shall take the following steps:

(a) Post a public notice on the Department’s website;

(b) Submit a press release to media in the study area; and

(c) Inform affected property owners, affected local, state and federal agencies, state legislators representing the district where the segment is located, any local port district, any local federally recognized tribes, any local watershed councils, national estuary programs and soil and water districts, and other interested persons.

(2) In conducting a study the Department shall take, at a minimum, the following steps:

(a) Analyze existing filled lands inventories, plat maps and deeds, historic low and high water lines as reported by the United States Army Corps of Engineers, aerial photography and tax lot information as compiled and digitized by the Department;

(b) Identify the purpose and date that the fill was placed, if possible;

(d) Evaluate any new information that can be collected by researching the local property records, or that may be provided by affected property owners or other stakeholders.

(3) Upon completion of a study the Department shall prepare and submit to the Board a draft report setting forth the Department’s findings and conclusions as to whether any historically filled lands are located within the area under study.

(4) Upon completion of the draft report, the Department shall:

(a) Post a public notice on the Department’s website;

(b) Submit a press release to media in the study area; and

(c) Provide appropriate public notice to affected property owners, affected local, state and federal agencies, any local port district, , any local federally recognized tribes, any local watershed councils, national estuary programs and soil and water districts, and other interested persons concerning the draft report.

(5) The Department shall provide an opportunity for the public to submit written comments on the draft report and to submit other evidence concerning the presence of historically filled lands.

(6) The Department may post a notice of a draft report 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 study and draft report. The Department shall make paper copies of materials available to any person upon request.

(7) The Department shall hold public workshops and informational meetings in the study area as appropriate.

(8) The Department shall hold a public hearing in the area of affected lands if it receives a written request within thirty (30) days after the posting of notice of the draft report by the Department.

(9) Following the notification and opportunity for a public hearing, the Board may adopt the draft report as final, or the Board may refer the report to the Department for further action.

(10) Upon adoption of a final report, the Board shall declare the nature and extent of the State’s claim to any interest that remains vested in the State of Oregon as identified in the final report.

(11) A declaration by the Board is not a final agency order.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0040 Notification of a State Land Board Declaration

(1) Following a Board declaration, the Department shall:

(a) Post a public notice on the Department’s website;

(b) Submit a press release to media in the study area; and

(c) Provide notice to affected local, state and federal agencies, state legislators representing the district where the study area is located, any local port district, any local federally recognized tribes, any local watershed councils, national estuary programs and soil and water districts, and other interested persons.

(2) The Department shall give notice by registered mail or by certified mail, return receipt requested, to each owner of record of land identified as having a State interest in the property. This notice shall include a copy of the declaration made with respect to the land and a statement informing the owner of record of a point of contact at the Department and options available to the owner of record based on the notice.

(3) The notice shall use common description and maps shall be designed to identify the land or waterway in a manner intelligible to the layperson and useful in establishing the exact location of the state claim in relation to existing descriptions.

(4) The Department shall record the declaration with the county of record for parcels determined to have a State interest.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0050 Resolving Ownership of Historically Filled Lands prior to State Land Board declaration and New Lands

(1) Notwithstanding the provisions of OAR 141-068-0030 through OAR 141-068-0040, any person with a potential interest in a property that wishes to resolve ownership of historically filled lands prior to declaration (including those lands excluded per OAR 141-068-0020(14)), or new lands may meet with the Department to discuss the facts concerning the creation and ownership of the lands in question.

(2) The Department shall charge an investigation fee of $250 if requested to complete a Strength of Claim checklist. The director has the discretion to waive this fee. A waiver must be in writing and explain the rationale for the waiver.

(3) The Department shall take the steps listed in OAR 141-068-0030(2) when completing an investigation.

(4) The Department shall complete a Strength of Claim checklist that summarizes the findings of the Department’s investigation.

(5) Based on the facts presented, as well as the Department’s own investigation, the Department may do the following:

(a) Agree that the Department has no interest in the historically filled land and offer to provide a conveyance that clears title to the lands as allowed under these rules;

(b) Begin the process to sell or clear title to the historically filled lands as provided under these rules;

(d) Enter into negotiation in lieu of litigation with the person to resolve the ownership question;

(e) Request more information from the landowner or person; or

(f) Pursue other actions aimed at resolving the ownership question.

(g) A conveyance issued under OAR 141-068-0050(5)(a) may be carried out by the Director, and does not require further State Land Board approval.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0060 Land Sale Application Requirements

(1) An application to clear title, buy or exchange land subject to these rules must be submitted on a form provided by the Department.

(2) Each land sale applicant must submit with the application a correct and concise description of the land(s) involved in the requested transaction.

(3) A single application may include multiple contiguous land parcels.

(4) The application fee for historically filled land, and existing new lands sales or land exchanges is $500 per application.

(5) An application to create new lands under OAR 141-068-0100 shall serve as the application fee to purchase if approved by the State Land Board.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0070 Application Review Process

(1) Upon receipt of an application, the Department will determine whether it is complete. In order to be complete, an application must meet the requirements of OAR 141-068-0060 (all sections of the application must be correctly filled out), and must be signed and dated by the applicant. Applications determined to be incomplete will be returned to the applicant with a written explanation of the reason(s) for rejection.

(2) If a rejected application is resubmitted within 120 calendar days from the date the Department returned it to the applicant, no additional application fee will be assessed.

(3) The Department will prioritize the processing of complete applications based on the following factors:

(a) An impending transaction or financing of the property in question;

(b) Department resources available to process the application requests;

(4) If determined by the Department to be complete, the application shall be circulated to affected local, state, and federal agencies; holders of valid authorizations granted by the Department in the requested area; any local port district, any local federally recognized tribes, any local watershed councils, national estuary programs and soil and water districts, and other interested persons. As a part of this review, the Department will specifically request comments concerning:

(a) The presence, type and location of state or federally listed species (including threatened, endangered, candidate and sensitive species), and archeological and historic resources within the lands;

(b) Current or historic use of the lands for fishing or recreation;

(d) Importance of the lands to existing or future navigational needs.

(5) The Department may post a 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 action. The Department shall make paper copies of an application available to any person upon request.

(6) If the Department does not find evidence of significant public interests per ORS 274.940, then the Department may determine that there are “low” public interests in the lands.

(7) If the Department finds that there are recreational, navigational, or fish and wildlife interests (per ORS 274.940) in the property, the Department may determine that there are “moderate” to “high” public interests in the lands.

(8) The Department shall evaluate the value of the State’s interest in the lands under review. The valuation shall be based on the Real Market Value (RMV) of the property’s land, not including structures, as determined by the County Assessor. This process for valuation shall be applied to determine parcels eligible for settlement under OAR 141-068-0080(4).

(9) Land where the State’s interest in the property is determined to be less than $20,000 shall be considered “low value”.

(10) Land where the State’s interest in the property is determined to be greater than $20,000 and less than $100,000 shall be considered “moderate value”.

(11) Land where the State’s interest in the property is determined to be greater than $100,000 shall be considered “high value”.

(12) If the RMV is found to be artificially depressed for any extenuating circumstance, the Department may select another comparable tax lot(s) as the basis for establishing the valuation.

(13) The Department shall complete an Evaluation Form that provides:

(a) The results of the Department’s due diligence;

(b) The results from the valuation of the State’s interests in the lands;

(d) A determination of whether the proposal is consistent with the general provisions set forth in OAR 141-068-0020.

(14) The review requirements of this section do not apply for a person requesting a conveyance that clears title when the Department has determined that there is no State interest in the historically filled land.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0080 Land Sale Approval Process

(1) An applicant and the Department may enter into a negotiated sale at any time. A negotiated sale shall include:

(a) An appraisal or appraisal report must be completed on the land if the initial evaluation determines the value to be over $100,000. If the initial Department evaluation determines the property to be under $100,000 in value, the RMV is used to establish the value; and

(b) A schedule of the costs to be borne by the applicant and those administrative costs to be reimbursed to the Department by the applicant.

(2) A negotiated sale may include factors including, but not limited to:

(a) The relative strength of the state’s ownership claim;

(b) Access or lack of access;

(d) An evaluation of any existing authorizations or property rights either on, or adjacent to the land; and

(e) Any requirement to impose deed restrictions or issue easements in order to protect public interest values.

(3) The Department may participate in a negotiated sale for:

(a) A parcel determined to be of “high value” as described in OAR 141-068-0070(11); or

(b) Upon public review and findings, the Department determines that there are “moderate” to “high” public interests in the lands.

(4) All negotiated sales shall go to the State Land Board for final approval.

(5) The Department shall provide the following sale options for historically filled lands determined to have “low” public interest values, and to be of “low value” to “moderate value”:

(a) The Department shall offer to provide a conveyance that clears title to the lands as allowed under these rules.

(b) No compensation is required for the issuance of a conveyance that clears title for a parcel that is determined to be of “low value” as described in OAR 141-068-0070(9).

(c) The Department shall offer to issue a conveyance that clears title for compensation at 50% of real market value of the State’s interest in the property for a parcel that is determined to be of “moderate value” as described in OAR 141-068-0070(10).

(d) A conveyance issued under OAR 141-068-0080(5)(b) may be carried out by the Director and does not require further approval from the State Land Board.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 3-2017, f. & cert. ef. 2-9-17
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0090 Land Sale Conditions

(1) The Department will offer the type of deed (for example: quitclaim deed or bargain and sale deed) it deems to be the most legally defensible and best represents the known rights and interests held by the State in the land or interest in land being conveyed in the transaction.

(2) The Department may enter into a land sale contract that allows the applicant to make annual installment payments over no more than five years when purchasing the property.

(3) The Department and an applicant may agree to enter into a land sale contract where payment to the Department is made through a lien against the property if:

(a) The applicant is over the age of 65; or

(b) The applicant has a level of income that is less than 80% of the median income in the county where the property is located.

(4) Any land sale contract negotiated under OAR 141-068-0090(2) or (3) shall include an interest rate as defined in ORS 82.010, set at the time of the agreement.

(5) As part of a negotiated sale, the Department may request additional requirements or conditions on the issuance of a deed, including but not limited to indemnification of and waiver of claims against the Department and State of Oregon.

(6) An offer by the Department to enter into a land sale or exchange is valid for 12 months. If the transaction is not completed within 12 months, the Department may:

(a) Revoke the offer and require a new application and fee in order to continue; or

(b) The Director may extend the deadline in writing to an agreed upon timeframe.

(7) When the land sale or land exchange process has been completed, including the payment of the purchase price and fulfillment of the terms of the land sale or land exchange agreement, the Director will execute and deliver to the purchaser a deed in a manner and form prescribed by these rules. The Department may choose to conduct closing through an escrow agent.

(8) All assignments of land sale contracts shall be executed and acknowledged in the same manner as a deed to land or real property. All requests for assignment of land sale contracts shall be in writing. Written consent of the Department is required for any assignment. The Department shall issue the deed to the assignee upon full payment of the purchase price or the remaining balance of the land sale contract.

(9) The Department shall record, in the appropriate county office, any and all deeds it receives as a result of a land exchange or purchase.

(10) The grantee shall record any conveyance issued by the Department it received as a result of a land exchange or purchase. A copy of the recorded document shall be submitted to the Department.

(11) The Department may, where feasible and deemed to be in the best interests of the public to do so, require the grantee to issue a similar deed to the Department for the existing submerged and submersible land fronting and abutting the grantee's land on the waterway as it exists at the time of the transaction.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0100 Permission to Create New Lands

(1) Pursuant to ORS 274.920, no one other than the United States, while engaged in the promotion of navigation, shall artificially create new lands by fill or deposit upon submersible or submerged lands without the approval of the owner of such lands and the owner of the adjoining or opposite upland on the same side of the body of water.

(2) Any person requesting to create new lands from state-owned submerged and submersible lands 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 to take part in a pre-application meeting.

(3) Any person requesting to create new lands from state-owned submerged and submersible lands shall apply for permission to create the new lands.

(4) The application fee for requesting to create new lands is $1,000 per application. A single application may include multiple contiguous land parcels.

(5) An application to create new lands shall be circulated to affected local, state, and federal agencies; holders of valid authorizations granted by the Department in the requested area; any local port district, any local federally recognized tribes, any local watershed councils, national estuary program and soil and water districts, and other interested persons. As a part of this review, the Department will specifically request comments concerning:

(a) The presence, type and location of state or federally listed threatened and endangered species (including threatened, endangered, candidate and sensitive species), and archeological and historic resources within the lands;

(b) Current or historic use of the lands for fishing or recreation;

(d) Importance of the lands to existing or future navigational needs.

(6) The Department may waive the circulation requirement described in OAR 141-068-0100(5) if the action or development has been previously reviewed by the listed agencies and other interested persons, and the results are documented by the Department.

(7) The Department may post a 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 action. The Department shall make paper copies of an application available to any person upon request.

(8) A request to create new lands may be taken to the State Land Board for review and approval. If a request for approval is submitted to the State Land Board, then the Department shall provide findings and a recommendation for the Board’s consideration.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0110 Sale or Exchange of New Lands

(1) The Department shall follow the provisions of ORS 274.925 to ORS 274.937 when offering an eligible person the right to purchase certain new lands.

(2) Notwithstanding the provisions of OAR 141-068-0110(1), any person may apply to purchase or exchange new lands per OAR 141-068-0060. The application shall be processed and reviewed per OAR 141-068-0070.

(3) Notwithstanding the provisions of OAR 141-068-0110(1), the sale or exchange of new lands shall be a negotiated sale subject to the provisions of OAR 141-068-0080 and OAR 141-068-0090.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0120 Reservation of New and Historically Filled Land

(1) Pursuant to ORS 274.940, the Department may reserve new and historically filled lands from sale, transfer or lease where upon notice and hearing the Department determines that the public interest requires the lands to be preserved for recreation, conservation of fish and wildlife or the development of navigation facilities. But in case of such reservation, the adjoining or opposite upland or riparian owner shall be allowed reasonable access across such reserved historically filled lands to navigable water.

(2) The Department shall use the comments received during public review and other findings when considering whether lands shall be reserved from sale.

(3) The Department shall hold a public hearing in the affected community prior to reserving the new or historically filled lands from sale.

(4) The Department will give 30 calendar days’ notice of a public hearing to adjacent land owners, lessees, interested persons, agencies and local governments by mail or e-mail, and press release. The public hearing information will also be posted on the Department’s website.

(5) A determination that the public interest requires new and historically filled lands to be reserved is not a final agency order.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0130 Compliance with the Department of Administrative Service (DAS) Rules for the Disposition and Acquisition of Real Property

(2) The Department will seek certification of these rules (OAR 141-068) as permitted by 125-045-0210.

(3) DAS approval is not required for the sale of New Land, where ORS 274.905 to 274.940 gives a person or public body a right to purchase New Lands.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Or. Admin. R. 141-068-0140 General Requirements for Appraisals

(1) Appraisals conducted for land sales, purchases or exchanges shall comply with the following requirements:

(b) Unless directed otherwise by the Department, the appraisal shall estimate the fair market value of the property based on its Highest and Best use, taking into account the contributory value of all offered interests in the property such as water rights, minerals, or timber to the extent that such interests are consistent with the highest and best use of the property.

(d) The Department may, based on the particular use of the appraisal, impose additional requirements or conditions on the appraisal.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274.905-274.956
DSL 2-2017, f. & cert. ef. 1-12-17
DSL 2-2016, f. 5-13-16, cert. ef. 6-1-16

Division 70 LEASING OF ONSHORE STATE-OWNED OIL AND GAS RIGHTS

Or. Admin. R. 141-070-0000 Purpose

The purpose of these rules is to provide a uniform system for leasing onshore oil and gas rights to individuals, corporations, and public bodies to encourage exploration and extraction of the state-owned oil and gas resources. These rules are promulgated and will be administered by the Division of State Lands under the authorities of ORS 273.551 et seq. and 273.775 et seq.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0010 Definitions

(1) “Anniversary Date” means the annual anniversary of the month and day specified in the first paragraph of the lease agreement.

(2) “Cash Bonus” means a per-acre sum of cash offered by a bidder as consideration for the execution of an oil and gas lease. A cash bonus is neither rent nor royalty but in addition thereto.

(3) “Director” means the Director of the Division of State Lands or his or her designee.

(4) “Division” means the Division of State Lands.

(5) “Environmental Impact Assessment” means an environmental analysis prepared by the lessee on a form provided by the Division describing how the lessee’s proposed activity will affect the natural resources including fish, wildlife, water, recreational, scenic and other resources of the leased lands; and describing the actions lessee will take to minimize these impacts.

(6) “Geophysical Survey” means the investigation of subsurface geological conditions by any method, including but not limited to the following: seismic, gravity, magnetics, electric and geochemical sampling.

(7) “Long Ton” means an amount equal to 2,240 pounds.

(8) “Negotiated Lease” means a lease varying from the standard form of lease, negotiated for lease parcels of less than the minimum 40 acres in size, pursuant to the requirements of OAR 141-070-0050(6).

(9) “Operations Plans” means the written plan of operations for oil and gas production and associated activities required by the State Department of Geology and Mineral Industries in conjunction with obtaining a drilling permit.

(10) “Surface Entry” means entry upon the surface of the leased premises to drill, mine, produce, lay pipelines or otherwise disturb the surface of the property. As used herein, a surface entry permit is not required to conduct geophysical or other nondestructive survey techniques such as geological mapping of the surface.

(11) “Shut in Well” means a well that is capable of producing oil and gas but production from the well has been temporarily halted.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0020 Qualification Requirements

(1) To qualify for a State of Oregon geophysical permit or oil and gas lease, an applicant must be:

(a) A citizen of the United States of legal age;

(b) A partnership conducting business under an assumed business name or a corporation registered with the State Corporation Division; or

(2) Members of the State Land Board and employees of the Division of State Lands shall not take or hold leasehold interests in state-owned oil and gas rights.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0030 Geophysical Survey Permit

A geophysical survey permit is required from the Division to explore state-owned land for potential oil and gas resources. A permit may be requested in writing from the Division’s mineral leasing manager and will be issued, if approved, on a form approved by the Director. Each application for a geophysical survey permit shall be accompanied by a $50.00 processing fee:

(1) The geophysical survey permit allows surface entry to explore the subsurface by techniques acceptable to the Division.

(2) Permission to conduct surveys across state leased lands must be obtained from state’s lessee prior to surface entry.

(3) The geophysical survey permit does not grant any rights to extract oil and gas nor grant any preference rights to an oil and gas lease.

(4) The Director may require the permittee to submit a post-exploration map to the Division identifying the exact location of all tests conducted.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0040 Title Warranty

The state makes no representation or warranty whatsoever with respect to its title to any lands offered for lease.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0050 General Leasing Conditions

(1) The Division of State Lands may conduct an auction of oil and gas rights upon receipt of applications nominating state-owned lands. The minimum acreage required for an auction to be conducted shall be determined by the Director. The Division may also nominate state-owned lands for auction.

(2) Nomination of oil and gas rights for auction shall be submitted on an application form provided by the Division pursuant to OAR 141-070-0060 below and will be considered an offer to lease and pay the minimum advance rental amounts for all lands nominated.

(3) State-owned oil and gas rights may be leased by oral bid auction or sealed bid auction, at the discretion of the Director. Under special circumstances, certain oil and gas rights may be leased through negotiation without an auction. (See section (6) of this rule.)

(4) All applications shall be presumed to be requests to lease state lands by the oral lease auction procedure. If the Director elects to lease the nominated lands by sealed bid procedure, all processing fees shall be refunded if applicants do not wish to participate.

(5) The legal descriptions of all lands nominated for auction shall be forwarded to affected government agencies, surface rights owners and other interested parties for review and comment. This notice is given pursuant to the Land Conservation and Development Commission governmental action coordination plan.

(6) The Director will determine which lands are available for auction or lease following consideration of comments received from government agencies and interested parties. Prior to holding an auction or offering parcels for lease, the Director may hold a public hearing to obtain public input on the desirability of leasing state lands for oil and gas production. The hearing will be an informational hearing only, to aid the Division in its leasing decision.

(7) The Division will not auction oil and gas leases for tracts of land that contain less than 40 acres, except in the case of isolated parcels, or where the Division determines that the public interest will best be served by waiving the minimum acreage requirement.

(8) A written request for a negotiated lease of less than 40 acres of state lands without an auction will be considered if the parcel is within a designated drilling unit and a drilling permit has been issued or other sufficient evidence is provided to assure that drilling for oil or gas will be accomplished within a reasonable period of time. The terms of any negotiated lease will include a royalty of not more than 3/8 and an advance rental bonus based on the lease term and parcel size.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0060 Lease Application

All requests to lease state-owned oil and gas rights shall be submitted on application forms provided by the Division.

(1) The completed application form must be accompanied by a $50 per parcel processing fee payable by cash or check to the Division of State lands.

(2) Each application shall be deemed an offer to lease the oil and gas rights to the lands described therein, including a commitment to pay one year’s annual rental in advance for all lands nominated by the applicant if no other bids are received on the subject lands.

(3) Lands included in a lease application will be described as parcels, with each parcel comprised of not less than 40 acres nor more than a platted section of approximately 640 acres except as allowed in OAR 141-070-0050(7) and (8) above.

(4) There is no limitation on the total number of parcels that an applicant may nominate for auction.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0070 Rejection

The Director may reject any application that is not in compliance with these rules or that is not in the public interest. If rejected, all fees shall be returned to applicant.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0080 Auction Notice

When the Director determines that sufficient lands have been nominated as described in OAR 141-070-0050, an auction date will be established and details pertaining thereto will be announced to all interested parties as follows:

(1) The Division will maintain a mailing list consisting of oil and gas lessees, previous bidders, parties who have requested inclusion on the list, affected state agencies, other governmental bodies and other interested parties as determined by the Division. When arrangements are finalized, a notice of auction, including date, time, place, minimum bid amount, legal description of the offered lands, and the type of auction, will be mailed to those on the above described list.

(2) The Division will give at least one public notice of each auction by publication in a newspaper of general circulation in the county in which the lands are located, at least 30 days prior to the auction date. The published notice will include the date, time, place, minimum bid amount, legal description of the offered lands, and the type of auction.

(3) All parties on the mailing list will be notified if the auction is cancelled or postponed.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0090 Auction Procedure

The procedure for auctioning state oil and gas leases shall be either by sealed bid or oral bid. The selection of auction procedure shall be at the discretion of the Director based on the public interest. Bids shall include the minimum bid amounts set by the Director plus any additional per-acre cash bonus amount the applicant desires:

(1) Oral Bid Procedure. The minimum starting bid amount per acre, minimum raise in bid per acre, and bidding unit parcels will be set forth in the notice of auction:

(a) The highest qualified bidder shall pay one year’s advance annual rental at the close of the auction and any cash bonus bid within five working days after the close of the auction. Upon compliance with these rules and applicable statutes, the highest qualified bidder shall be awarded the lease;

(b) If no bids are received at the auction, the Division may award the lease to the original nominating applicant by accepting that applicant’s offer pursuant to OAR 141-070-0060(2);

(2) Sealed Bid Procedure. The minimum acceptable bid will be established by the Director and will be announced in accordance with OAR 141-070-0080:

(a) The number of acres within each bidding unit shall be established by the Director;

(b) Each bidder shall submit a completed bid form provided by the Division together with a check in an amount not less than ten percent of the total bid amount per bidding unit. All bids received by the deadline stated in the auction notice shall be opened and announced at the specified place, date, and hour;

(c) The Director shall award a lease to the highest qualified bidder for each bidding unit within 30 days of the bid opening. The successful bidder shall pay the balance of the cash bonus bid amount and the first year’s rental within ten working days of the date the Director notifies the successful bidder by certified mail.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0100 Lease Conditions and Requirements

All oil and gas leases shall be on a form approved by the Director of the Division of State Lands. The oil and gas lease form contains specific contractual rights and obligations including, but not limited to, the following:

(1) The lease agreement allows only limited right of surface entry to the leased lands. After the Environmental Impact Assessment has been approved by the Division and the Operations Plan has been approved by the Department of Geology an Mineral Industries, and all necessary bonds, insurance, permits, and approvals have been received, pursuant to OAR 141-070-0110 below, the Division may issue a surface entry permit to accomplish the purpose of the lease.

(2) The lessee shall be responsible for all damages resulting from its operations on the leased lands.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0110 Surface Entry Permit

When the State owns the surface as well as the oil and gas rights, no road construction, site preparation or drilling for oil or gas shall take place on the surface of the leased premises prior to the issuance of a surface entry permit. When the state owns oil and gas rights but not surface, the lessee must pursue obtaining surface entry in the manner provided by law for exercising access to severed estate mineral rights. The Division may issue a surface entry permit upon receipt and approval of the following:

(1) An Operations Plan as required by the Department of Geology and Mineral Industries in conjunction with obtaining a drilling permit.

(2) A payment, production and performance bond or bonds in the amount stipulated in the lease agreement in addition to any performance bond that may be required by the Department of Geology and Mineral Industries in connection with issuance of an oil and gas drilling permit.

(3) A certificate of insurance for not less than $1,000,000 combined single limit per occurrence showing that the lessee is insured for personal injury, property damage to third persons and liability under the terms of the lease agreement. The insurance amount shall be for each occurrence and shall name the State of Oregon as an additional insured.

(4) An Environmental Impact Assessment completed by the lessee on a form provided by the Division. The environmental assessment shall include but will not be limited to adverse effects on the human and natural resources of the area, including scenic, recreational, public health, and plant and animal resources. It will also require a description of procedures the lessee will take to mitigate said impacts. The approval or disapproval of the Environmental Impact Assessment will be determined by the Division within 90 days of receipt of the completed form.

(5) Permits as required by governmental bodies.

(6) A designated agent, if lessee is a nonresident. Lessee shall designate, in writing, an Oregon resident as a designated agent upon whom may be served written notices or orders respecting the lease agreement.

(7) Operator. Any operator appointed by the lessee shall be jointly responsible for the faithful performance of all covenants and obligations of the lease.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0120 Rental Amounts

Lessee shall pay to the state annually in advance, the following rental amounts per acre or fraction of an acre per year:

(1) Annual Rental — The amount of $1 per acre or fraction of an acre payable in advance on an annual basis during the primary ten-year lease term and any extended term of the lease.

(2) Delayed Rental — The amount of $1 per acre or fraction of an acre in addition to the annual rental to defer the lease agreement drilling requirement. Delayed rental is payable on or before the 5th through the 9th anniversary dates of the primary lease term unless the drilling requirements are satisfied or the lease agreement is terminated.

(3) The lease shall automatically terminate if all annual and delayed rental payments required by the lease are not received by the Division on or before the anniversary date of the lease.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0130 Royalties

The minimum royalties on all leases shall be:

(1) Oil — One-eighth of the market value at well head.

(2) Gas — One-eighth of the proceeds from sale of gas as calculated at well head.

(3) Sulphur — One dollar per long ton.

(4) At the discretion of the Director, royalties for negotiated leases and for leases within six miles of a shut in or producing oil and gas well may be in excess of the minimum royalty but not to exceed 3/8 of the value as described under sections (1) and (2) of this rule.

(5) The lessee shall furnish monthly royalty statements specifying the total production, sales price, taxes, and the state’s share of production attributable to each leased parcel of state land.

(6) Any person authorized by the state may examine all books and records pertaining to oil and gas resources taken from the leased lands.

(7) The state shall have the right to measure, sample and/or witness the removal of all substances from the leased lands at any reasonable time.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0140 Assignment of Lease

The assignment of a divided or undivided lease interest, in whole or in part, may only be accomplished by compliance with the following:

(1) Divided Interests. All request for assignment of divided interests must be submitted on forms provided by the Division and are subject to approval by the State Land Board. Assignment of a separate portion of the lease shall release the assignor from further lease obligations only with respect to the assigned lands.

(2) Undivided Interests. All request for assignment of undivided lease interests must be submitted on forms provided by the Division and are subject to approval by the Director. Undivided assignment of lease interests does not segregate the lease, and the original lessee and assignee shall both be responsible for the performance of all duties and obligations of the lease agreement.

(3) Fee. The processing fee shall be $50 for each assignment. All assignment forms shall be submitted in duplicate.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0150 Production Requirements

Whether or not the state owns the surface, no production of oil, gas, and the constituents thereof shall be commenced until the lessee has submitted, and the Director has approved, an Operations Plan and an Environmental Impact Assessment, or an amendment of a previously approved impact assessment.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0160 Lease Termination

At the expiration of the lease or upon sooner termination, the lessee shall execute and deliver to the state a release or a recorded quitclaim of the leased premises if the original lease was recorded.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Or. Admin. R. 141-070-0170 Leases Issued Prior to the Effective Date of These Rules

All upland oil and gas lease agreements issued prior to the effective date of these administrative rules remain subject to the provisions of OAR 141-072-0205 et seq., under division 72 of chapter 141, Division of State Lands.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 3-1988, f. & cert. ef. 9-19-88

Division 71 ONSHORE MINERALS PROSPECTING AND LEASING RULES

Or. Admin. R. 141-071-0400 Purpose

The purpose of these regulations is to prescribe uniform procedures for obtaining and conducting operations under mineral prospecting permits and mining leases covering onshore state-owned lands and mineral rights under the jurisdiction of the Division of State Lands.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0405 Definitions

(1) “Division” means Division of State Lands.

(2) “Director” means the Division Director.

(3) “Mining claim” means as defined in ORS Chapter 517.

(4) “Mining lease” means the completed lease following the form adopted by OAR 141-071-0690.

(5) “Lands” means the state-owned lands as listed in the Registry of Mineral Rights for which the Division may execute mining leases under ORS 273.780. (Certain minerals and lands are excluded by ORS 273.785.)

(6) “Surface Rights” means all property rights and usage exclusive of the mineral estate or reserved mineral rights.

(7) “Valuable Minerals” those metallic minerals and uranium covered by these rules which have sufficient values to justify expenditure by a prudent man for development and extraction.

(8) “Commercial Quantities” those valuable minerals, as defined herein, which exist in sufficient amounts to justify expenditures by a prudent man for development and extraction.

(9) “Hard Mineral Resource” all state-owned metallic and non-metallic minerals except oil, gas and sulphur, geothermal resources and their by-products, and construction grades of rock, sand, and gravel.

(10) “Discovery” finding of one or more valuable minerals in commercial quantities.

(11) “Exploration” means electrical and electronic surveys, seismic, gravimetric, geochemical surveys, shallow core drilling, assay work, and other measurements of a like nature.

(12) “Registry” means the inventory of mineral rights established by the Division of State Lands pursuant to ORS 273.790 listing lands owned by all state agencies in which mineral rights were transferred to the Division for leasing.

(13) “Operations Plan” means the planned series of measurements, tests, and surveys which a permittee expects to employ; multiple plan segments may be employed to allow sequence adjustments whenever data warrants.

(14) “Qualified Applicant” means any United States citizen of legal age, or any firm, association, or corporation which is qualified to do business in the State of Oregon and is not in default under the laws of the State of Oregon relating to qualifications to do business within this state; and governmental units, including without limitation, municipalities; provided, that no member of the State Land Board or employee of the Division of State Lands may take or hold a lease upon state-owned mineral rights.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0410 State Land Board Policy

In order to more fully manage the mineral rights in property owned by any state agency as directed by ORS 273.780, the State Land Board adopts the following program policies:

(1) The Division’s program should provide for environmental protection on a parcel-by-parcel basis, protect the long-term use of surface rights, and obtain an equitable return to the proper state fund.

(2) Mining production leases shall be issued on the following terms: $1 per acre per year; royalty rate of 5 percent for most metallic minerals; escalating development expense from $1 per acre per year to $3 per acre after the third year; and ten year primary term on leases covering a maximum of 640 acres.

(3) Competitive bidding should be utilized to obtain the highest available return from discovered mineral occurrences.

(4) Lease applications which include assay valuations in excess of $100,000 shall be subject to final approval by the State Land Board.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0420 Fees and Service Charges

The Division shall collect nonrefundable service charges to cover the expense of processing the following matters:

(1) Original application — $50 for each lease or permit.

(2) Assignment — $25 for each assignment.

(3) Mineral prospecting permit fee — $.50/acre annually.

(4) Renewal prospecting permit fee — $5/acre annually.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0425 Insurance

Prior to any operations on state-owned land, permittees and lessees shall provide evidence of insurance as follows:

(1) Public liability of $100,000, $300,000 and property damage of $100,000, including fire coverage; and

(2) Contractual liability covering the permittee’s or lessee’s duty of indemnification of the state — $200,000. The State of Oregon, the Division of State Lands, and the appropriate surface-owing agency shall be named as co-insured; or

(3) Self-insurers — In lieu of required types and amounts of insurance coverage an applicant or lessee may provide a certified balance sheet for a segregated self-insurance fund showing net worth of liquid assets in amounts equal to or exceeding the required insurance coverage.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0430 Bonds

Applicants for permits or mining leases shall furnish corporate surety bonds in amounts and with sureties acceptable to the Division. Bonds will be conditioned on compliance with all the terms of the permit or lease.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0440 Reservations

(1) The Division may withdraw any mineral rights from availability for exploration or leasing at any time prior to receipt of notice of a discovery. Withdrawals based on applicants’ environmental reports or state investigation shall be subject to appeal under ORS Chapter 183.

(2) The Division reserves the right to conduct competitive bid sales on lands not subject to preference rights or otherwise encumbered, whenever deemed necessary on or nearby discovered mineral occurrences.

(3) The Division may refuse to grant a lease for state-owned mineral rights because of considerations of environmental quality or other public interest.

(4) The Division may, by agreement with interested parties, provide special rules, interagency agreements, compensatory development or other means which deviate from these mineral leasing rules where the statutes, rules, and regulations defining and implementing the dedicated purpose for which state-owned surface rights were acquired are in conflict with mineral rights exploration and development.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0445 Refunds and Withdrawals

(1) If an application for a Mineral Prospecting Permit is rejected, all checks tendered by applicant, except the filing fee, will be returned. If part of an application is rejected, per acre fees applicable to the rejected acreage will be refunded.

(2) Should an applicant desire to withdraw his application, the applicant must make a written request. If the request is received prior to the time the Division approves the application, all checks tendered by the applicant, except the filing fee, will be returned. If the request is received after approval, then, unless the applicant accepts the offered permit, all money tendered is forfeited to the state, unless otherwise ordered by the Director for good cause shown.

(3) Should an applicant desire to withdraw an application which has been filed under the simultaneous filing or competitive bidding rules, the applicant must make a written request. If the request is received before the public drawing or bidding, all checks tendered by the applicant, except the filing fee, will be returned. If the request is received after approval, then, unless the applicant accepts the offered lease, all money tendered is forfeited to the state, unless otherwise ordered by the Director for good cause shown.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0450 Records

Copies of all exploration data, including for example drilling logs, geochemical readings, and field notes, shall be deposited with the State Geologist within five years after performance of the work. If ongoing exploration work or lease performance warrants secrecy of such information, it shall be held under such conditions as the State Geologist and permittee or lessee may agree upon.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0455 Lands Subject to Permit

All state-owned lands and mineral rights under the Division’s jurisdiction are available for prospecting except:

(1) Lands and mineral rights classified as containing commercially valuable mineral deposits; and

(2) Lands reserved for a Natural Area Preserve or otherwise withdrawn from exploration;

(3) Lands and mineral rights already subject to exclusive permit or lease. State-owned parcels not included in the State Minerals Registry but under the jurisdiction of the Division may be made available for minerals exploration by special arrangement.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0460 Mineral Prospecting Permit Required

No person shall conduct mechanized exploration operations on, in, or under land or mineral rights owned by the State of Oregon and under the jurisdiction of the Division without a permit or lease issued pursuant to these regulations. Casual prospecting, using hand tools, may be conducted without a Division of State Lands Mineral Prospecting Permit provided that the land surface is otherwise available for public access. Please note that state parks, state tree nurseries, streams, lakes, and waterways are made unavailable or require additional permits under other state agency regulations.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0465 Application for Mineral Prospecting Permit

Any qualified applicant wishing to obtain an original, amended, or renewal mineral prospecting permit from the Division shall submit at least two copies of a mineral prospecting application on a form provided by the Division together with the required fees. All such forms shall be completed in full, signed by the applicant of his (its) authorized representative with proof of authorization, and shall include two copies of all necessary exhibits. Maps shall be in reproducible form. The Division may require submission of such other information as it deems necessary to make a decision on granting, modifying, or denying the permit.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0470 Priority

Applications will be accepted in the order received and priority of permit issuance will be established on the same basis except as provided in the case of simultaneous filings.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0475 Application Approval

(1) Upon receipt of a mineral prospecting permit application, the Division shall cause copies of the application to be sent to the surface rights holder and affected state agencies, including the Department of Environmental Quality, Department of Geology and Mineral Industries, Public Utility Commissioner, State Fish and Wildlife Commission, Department of Energy, State Historic Preservation Office, and Land Conservation and Development Commission and to such other agencies or persons as the Division deems appropriate.

(2) Each agency shall be requested to respond within 30 days by making a recommendation as to whether the permit should be granted. Agencies may recommend conditions to be contained in the mineral prospecting permit to satisfy requirements within their respective statutory jurisdictions. Applicants will be advised of conditions recommended by state agencies and, where advisable, a conference between agencies and applicants will be held.

(3) The Division shall make such investigation as it considers necessary.

(4) The Division or any state agency holding the surface rights may refuse to grant a permit for exploration of mineral rights under the jurisdiction of the Division of State Lands if it has reason to believe that a mineral lease could not be issued because of considerations of environmental quality or other public interest.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0480 Mineral Prospecting Permit Terms

(1) Except for additions and modifications required to protect natural resources and environmental quality, the Division of State Lands Mineral Prospecting Permit form as adopted August 15, 1977, will be issued upon approval of a prospecting permit application. Prospecting Permits shall expire three years from date of issuance.

(2) In the event that a discovery is not obtained during the initial term of an exploration permit, the Division may agree to renew for an additional three year term provided:

(a) An exploration operations budget equal to or exceeding nine times the annual permit fee is submitted by the permittee together with an exploration plan approved by the State Geologist; or

(b) Applicant has commenced actual drilling prior to the expiration date of the initial term and agrees to continue with due diligence to reach a promising geologic structure; and

(3) Mineral Prospecting Permits allow exclusive use of the mineral estate (not exclusive as to the surface) but are not to be construed as a possessory right.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0485 Conversion

Upon discovery of valuable minerals in commercial quantities, the permittee shall immediately notify the Division in writing (giving sufficient detail to enable the Division or an impartial consultant to evaluate the discovery). Thereafter, for a period of sixty days, the Division will suspend action on the mining lease applications for lands or mineral rights within four miles of the discovery site. Mining lease applications by the permittee for state-owned land and mineral rights within the suspension zone will be given first priority if properly filed within the sixty days suspension period.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0490 Mining Lease Required

No person, association, or corporation shall dig, extract, mine, drill and sell, remove or dispose of any hard mineral resource in commercial quantities from state-owned land under the jurisdiction of the Division of State Lands without a lease issued under these rules.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0495 Availability

State-owned lands are available for mineral leases if:

(1) A certified or proven discovery has been made under an exploration permit; or

(2) A nearby discovery warrants inclusion of the state land in a unit agreement or in competitive bidding as provided in these rules; or

(3) The lands have been formally classified by the State Land Board, or the Division, for minerals leasing.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0500 Size of Leasable Tract

(1) Minimum — Except for good cause shown, no minerals lease will be issued for a tract less than a quarter-quarter section (40 acres) or surveyed lot, which could be more or less than 40 acres, except where state lands within any quarter-quarter section or surveyed lot is less than the whole thereof, in which case the lease will be issued only on the entire area of state lands within such quarter-quarter section or surveyed lot.

(2) Maximum — Upon certification of a discovery, the permittee shall be entitled to apply for four mineral leases of not more than 640 acres each of the land embraced in the exploration permit. The areas selected by the permittee/applicant shall be in compact form and shall conform to government surveys wherever possible.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0505 Application

Any qualified applicant wishing to obtain an original, amended, or renewal mining lease shall submit at least two copies of a written application on forms provided by the Division. The application must be completely filled out and duly signed by the applicant and be accompanied by the required fee and advance rental. Any false or willfully incomplete statement will be considered misrepresentation and may be cause for rejection. Any person purporting to act for an applicant in making application for a mining lease shall accompany the application form with a properly executed power of attorney or shall have same on file in the Division of State Lands.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0510 Receipt of Application

Applications for mineral leases will be received for filing in the office of the Division during office hours. Because lease priority is obtained only by discovery, drawing, or competitive bidding, time of receipt will be recorded in the same manner as other correspondence.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0515 Priority

A permittee under a current minerals prospecting permit shall obtain a preferential right to a minerals lease if:

(1) The permittee certifies that it has discovered a valuable mineral deposit and will obtain commercial production of a mineral or minerals; and

(2) The permittee completes the requirements of OAR 141-071-0505 and 141-071-0520.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0520 Application Supplement

The application priority afforded an applicant by OAR 141-071-0515, or awarded by means of simultaneous filing drawing, or competitive bidding shall be maintained provided that, within 120 calendar days following acceptance of the application form, the applicant submits the following supplemental information to the Division:

(1) An environmental impact report following the form adopted by the Division.

(2) When deemed necessary or advisable, the Division may require an applicant to submit copies of all technical data relied upon by the applicant as proof of discovery.

(3) A proposed plan for mined land reclamation (copy of Department of Geology and Mineral Industries Reclamation Permit application acceptable).

(4) Such other information as the Division advised the applicant to be necessary.

(5) Mining Lease applications may include a corporate surety bond of not less than $1,000, or, if not submitted at the time of application, must be provided prior to issuance of a mineral lease.

(6) The Division may require additional amounts of bonding from time to time during the lease term whenever the monthly proceeds from royalties exceeds 1/3 of the bond amount.

(7) Extension during exploration. The Division may grant an extension of time for submission of supplemental information whenever the applicant is proceeding under a valid mineral prospecting permit to determine the nature of the mineral resources included in the mineral lease application. Such extension(s) shall not exceed one year’s time.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0525 Application Rejection

If application supplements are not received by the Division within the time limit specified in OAR 141-071-0520 or if such application supplements are not complete, the entire application shall be rejected and returned to the applicant with an explanation of the reasons for rejection.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0530 Application and Supplement Consideration

(1) Upon receipt of a lease application, the Division shall cause notice of the application to be sent to affected state agencies, including the agency having jurisdiction over the surface rights, the Department of Environmental Quality, Department of Geology and Mineral Industries, State Fish and Wildlife Commission, Land Conservation and Development Commission, Department of Energy, State Historic Preservation Office, and such other agencies or persons as the Division deems appropriate.

(2) Upon receipt of the environmental impact report, the Division shall send copies to the same affected state agencies.

(3) Each agency shall be requested to respond within 60 days of its receipt of the environmental impact report making a recommendation as to whether the lease should be granted to the applicant. Agencies may also recommend conditions to be contained in the lease to satisfy requirements within their respective statutory jurisdictions. Applicants will be advised of conditions recommended by state agencies and, where advisable, a conference between agencies and applicants will be held.

(4) The Division shall make such investigations as it considers necessary and shall notify the public of its opportunity to request a hearing or hearings upon the granting of the application, together with the timetable and procedures to be followed. The Division will provide written notice to any person or organization which has requested in writing of the Division that such notices be provided to it directly.

(5) If the Division approves the application, and the state agency controlling the surface rights concurs, the application will be placed before the State Land Board for its final approval, when required by OAR 141-071-0410. Upon approval by the State Land Board, if required, the Division shall promptly forward to the applicant a mining lease incorporating all conditions which are deemed necessary by the Director, taking into consideration the recommendations of other affected agencies, the protection of natural resources, public health, and safety.

(6) The Division or Board may refuse to grant a lease for state-owned minerals because of considerations of environmental quality, inadequate cost-benefit ratio, or other public interest.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0535 When Applicable

Upon an order of the Director, when he deems it necessary to insure competitive equity, the Division shall offer mineral resource rights for leasing by public drawing. Additionally, Prospecting Permit applications received for the same land or mineral rights in any single mail delivery shall be awarded priority by following OAR 141-071-0540(4) and (5).

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0540 Procedures

The following procedures shall be employed in leasing mineral resource rights by public drawing:

(1) A notice of the mineral resource rights available for leasing by public drawing shall be posted in the offices of the Division and distributed to all persons who have informed the Division in writing of their desire to receive such notice. The Division shall describe the mineral resource rights available for leasing, and state the last date, which shall be at least 30 days after the date the notice is posted, on which applications will be received.

(2) Applications for the mineral resource rights described in the notice shall be submitted in sealed envelopes labeled “Simultaneous Filing# date” on a form supplied by the Division, and shall be accompanied by the filing fee required by OAR 141-071-0420 and the advance rental required by 141-071-0600 and a stamped business reply envelope.

(3) All applications for the leasing of such mineral resource rights filed on or before the closing date stated in the notice shall be considered to have been filed simultaneously. Such applications shall be opened in the Division’s Salem office at 10 a.m. of the first day following the closing date stated in the notice.

(4) After reviewing each application for compliance with the requirements of these rules, the Division shall select the successful qualified applicant by a random drawing which shall be held in public. Unless otherwise noted in the notice for simultaneous filing, successful mining lease applicants shall be required to comply with OAR 141-071-0520.

(5) After the awarding of mining leases or prospecting permits to the successful qualified applicants, all rental checks shall be returned to the unsuccessful applicants, together with a list of the successful applicants.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0545 Competitive Bidding

Upon a determination that mineral rights lying near a discovery site are not leased or subject to application under OAR 141-071-0535 or 141-071-0485, the Division may offer one or more parcels not exceeding 640 acres each for competitive bidding, by sealed bids or at oral public auction, to the bidder offering the highest bonus in addition to the minimum annual rental.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0550 Notice of Bidding

The Division will publish a notice of opportunity to bid for leases within the discovery area in a newspaper of general circulation in the county or counties where the discovery is located. The Division will provide written notice to any person or organization which has requested in writing of the Division that such notices be provided to it directly.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0555 Contents of Notice

The notice will specify the time and place of bid opening, the manner in which bids shall be submitted, a description of the mineral rights in each bidding unit, and the terms and conditions of the lease, including royalty and rental rates. The notice will also state that a proposed development and operations plan and an environmental analysis of development and production alternatives will be required before a lease can be issued.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0560 Bidding Requirements

Each bidder shall submit with his bid an application to lease mineral rights, the filing fee required by OAR 141-071-0420, and a certified or cashier’s check, bank draft, or money order in the amount of one-half of the amount of the applicant’s bonus bid.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0565 Opening of Bids and Award of Leases

The following procedures will be employed in opening bids and awarding leases:

(1) All bids received within the deadline stated in the notice shall be opened and announced at the place, date, and hour specified in the notice. No bids will be accepted or rejected at that time.

(2) The Division shall have the right to reject any and all bids submitted. Incomplete and non-conforming bids shall be rejected and the bonus bid deposits thereon returned.

(3) Within 30 days of the bid opening, or such longer periods as may be specified in the notice of bids, the Director shall award a lease for each bidding unit to the qualified applicant who is highest bidder. If the Director does not award a lease within the required period, all bids shall be considered rejected.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0570 Oral Bidding Procedure

Oral bidders will be required to conform to specific directions published in the bidding notice. Within 30 days of the oral bidding, or such longer periods as may be specified in the notice of bidding, the Director shall award a lease for each bidding unit to the qualified applicant who is highest bidder. If the Director does not award a lease within the required period, all bids will be considered rejected. OAR 141-071-0575.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0575 Lease Execution

If a lease is awarded, a form of lease shall be sent to the successful bidder, who must execute it within 30 days of receipt, pay the first year’s rental, and pay the balance of (his) bonus bid. Within 120 days, and prior to commencing the operations under the lease, the lessee shall file the corporate surety bond required by the Division, file evidence of required insurance, and file completed agreements for environmental protection and surface management.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0580 Forfeiture of Competitive Bid Leases

If a successful bidder fails to execute the lease or otherwise fails to comply with these rules, his deposit will be forfeited and the bidding unit will be reoffered for competitive leasing.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0585 Restoration of Bidding Units

If no bids are received on a bidding unit, the Division, at its discretion, may offer the lands and mineral rights for non-competitive leasing.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0590 Mineral Lease Form

Generally, the Division of State Lands mining lease form (OAR 141-071-0690) as adopted and currently in use will be issued upon approval of a lease application. Modifications and additions of lease terms deemed necessary by the Division shall thereafter be included in each lease issued for the same parcel.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0595 Term of Lease; Renewal

(1) Mineral leases shall have a primary term of ten years, commencing with the date of execution.

(2) If royalties from minerals produced during any year of the primary term or a succeeding ten-year term equal or exceed twice the annual rental due under the lease, the lessee may renew for successive ten-year periods up to a maximum of 50 years.

(3) In no event shall a lease continue beyond the period of 50 years from the date of execution, except that the lessee shall have a right of first refusal in the event that the Division decides to continue leasing the premises.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0600 Rental Rate

Rentals at the rate of $1 per acre per year shall be due and payable in advance on or before the annual anniversary of the effective date of the lease. Rentals paid each year will be deducted from royalties due accruing during the rental year.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0605 Development Requirement

The operations contemplated in each lease shall be carried on with due diligence and in a workmanlike manner. Lessees will conduct such examinations, explorations, testing, and samplings as may, in competent judgment, be necessary to determine the extent, quality, feasibility, and economic potential of the mineral resource in, upon, and under the leased premises, together with such other studies as may be necessary for it to reach a determination as to development methods, preparations, equipment, and mining of the leased premises. The lessee shall expend for approved development work within the times and in the amounts as follows:

(1) According to the total number of acres covered by advance rental payment each year under this lease, prior to the end of the first year of each mineral lease — an amount equal to the total number of acres leased in each lease multiplied by $1; and

(2) Prior to the end of second year of each mineral lease — an additional amount equal to the total number of acres in possession under each lease at the beginning of the second year multiplied by $2; and

(3) Prior to the end of each subsequent year of each mineral lease — an additional amount annually equal to the total number of acres in possession under each lease at the year’s beginning multiplied by $3.

(4) Development work or improvements, to be acceptable, must contribute directly to the mining or mineral potential of the property.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0610 Royalties

All valuable minerals and specific materials removed by any person from lands or mineral rights subject to ORS 273.780 shall be subject to payment of royalties to the Division of State Lands in accordance with these rules, except that any person may remove minerals, sand and gravel, or rock materials in quantities not exceeding ten yards per year without payment of royalties. Royalties rates shall be charged upon the gross value of the minerals removed from the lease premises and sold or otherwise utilized by the lessee during each month of the lease, as follows:

(1) For metallics and uranium — 5 percent.

(2) For non-metallics except those covered by OAR 141-014-0300 through 141-014-0370 et seq., sand, gravel, and rock — A rate per ton to be determined by the Director to be fair and reasonable under the particular lease to be issued.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0615 Measurement

The lessee shall accurately measure or gauge the quantity and quality of all production in accordance with the standard practices, procedures and specifications used in the industry.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0620 Basis of Value

The value of minerals or specified materials shall be determined by the gross market value at the mine mouth. In the event that minerals are not sold in raw form but are furnished to a plant owned or controlled by the lessee, the gross market value may be determined by an appraisal of values for minerals of like quality and quantity. Should the Division believe that any charges imposed and deducted are excessive or that the price received by lessee is unreasonable, lessee shall, upon 30 days written notice, produce evidence that the charges or price or both comply with the above requirements.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0625 Commingling

All production shall be maintained segregated until an approved system of measurement has accounted for the quantity and quality of the leased minerals. Approval may be obtained to commingle production upon proof that royalty payable to the state shall not be diminished.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0630 Assignment

(1) A mineral lease shall not be assigned, in total or in part, without written approval of the Director.

(2) Each request for total or partial assignment of lease must be accompanied by the following:

(a) A completed “Assignment of Lease” form (available from the Division);

(b) A fee in the amount of $50 payable by check;

(c) If a corporation, written verification that the assignee is registered to conduct business in Oregon. Registration must be through the Corporation Division, Secretary of State’s Office, Salem, OR 97310.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 1-1981, f. & ef. 6-19-81
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0635 Surface Management

In all leases where the state has no interest in the surface estate, the lease shall contain the following provision for protection of the surface owner: Unless waived in writing, the lessee shall annually pay to the surface owner a sum equal to the amount of damages sustained by the surface owner for loss caused by mining activity. The amount of damages may be determined by any formula mutually agreeable between the surface owner and the lessee.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0640 Reclamation

It shall be a continuing obligation of the lessee to pay the cost of the surface reclamation necessitated by that lessee’s mining operation. This obligation as to state-owned land or mineral rights shall not be limited by the bond limitation required under ORS 517.810. If a lessee fails to begin reclamation of the leased premises as scheduled in the plan required under OAR 141-071-0520 or within one year after termination of the mining operation, the Division may conduct such reclamation operations as it finds necessary and levy the costs thereof as a charge upon the lessee. Such action shall not preclude any other action at law by the state.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0645 Relinquishment

(1) A mining lease, or any portion of the mineral rights covered by such lease, may be relinquished by the lessee by filing a written statement with the Division which:

(a) Describes the mineral rights to be relinquished by legal subdivision or survey;

(b) States that the land surface above the mineral rights have not been disturbed, drilled, mined or otherwise affected, or if disturbed or otherwise affected, describing the manner in which such lands were restored to their original condition;

(d) Is accompanied by a release from the State Department of Geology and Mineral Industries of Mined Land Reclamation Act permit.

(2) A relinquishment shall take effect upon approval by the Division, subject to the continuing obligation of the lessee and the lessee’s surety to pay all accrued rentals, royalties and taxes, if any, and to comply with all conditions of the lease and of these rules related to the restoration of the leased premises.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0650 Investigation of Leased Premises

The Division may conduct scheduled and unscheduled inspections of operations conducted by the lessee under a mining lease. Upon receipt of a complaint related to the conduct by the lessee of its mineral resource exploration, development, or production, the Division or any governmental official appointed to the task by it may make an investigation and collect facts and opinions.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0655 Suspension of Operation

Upon the occurrence of any of the following events, the Director may issue an order suspending operations under a mining lease executed by the Division:

(1) Violation of the regulatory requirement of the Oregon State Department of Geology and Mineral Industries, the Oregon Department of Environmental Quality, the Division of Employment, Bureau of Labor, Workmen’s Compensation Board, Public Utility Commissioner, Department of Revenue or other authority having jurisdiction, in excess of 30 days after notice in writing from any such agency, except that requirements undergoing further consideration or reconsideration by such agency, or appeal to the courts of such agency’s decision, shall allow continued operation of the leased premises.

(2) Any violation of the terms and conditions of a mining lease which, in the judgment of the Director, jeopardizes the environment, public health, welfare, or safety of the State of Oregon.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Or. Admin. R. 141-071-0660 Cancellation of Mining Lease

The Division may commence proceedings to cancel a mining lease if:

(1) A lessee is in continued violation of terms and conditions of the lease including but limited to the requirement thereof to exercise due diligence in exploring, developing, and operating under the mining lease, beyond 30 days after receipt of notice in writing of such violation from the Division.

(2) The lessee submitted false information in its application or in any other document required to be submitted to the Division; or

(3) The lessee has changed its method of exploring, developing, or producing mineral resources under the lease without first securing the approval of the Division.

History

Statutory/Other Authority: ORS 273
Statutes/Other Implemented: ORS 273.780 - 273.790
LB 44, f. & ef. 8-16-77

Division 73 RULES GOVERNING THE RELEASE, SALE OR EXCHANGE OF MINERAL RIGHTS HELD BY AGENCIES OF THE STATE OF OREGON OTHER THAN THE DEPARTMENT OF STATE LANDS AND STATE LAND BOARD

Or. Admin. R. 141-073-0100 Purpose and Applicability

(1) These rules govern the release, sale or exchange of mineral rights held by agencies of the State of Oregon other than the State Land Board and the Department of State Lands.

(2) The procedures contained in these rules shall be used by the State Land Board and the Department to review proposed releases, sales or exchanges of properties by state agencies to determine if the state should release, sell or exchange the mineral rights that may be a part of these properties.

(3) These rules do not apply to the release, sale or exchange of mineral rights held by the State Land Board and administered by the Department. These activities are governed by the Rules Governing the Sale, Exchange and Purchase of Land (OAR 141-067).

History

Statutory/Other Authority: ORS 273.045, 273.551 & 273.775 - 273.790
Statutes/Other Implemented: ORS 273.780 - 273.790
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05
LB 23, f. 4-18-75, ef. 5-11-75

Or. Admin. R. 141-073-0105 Definitions

(1) “Agency” or “State Agency” as defined in ORS 291.002(9) means every state officer, board, commission, department, institution, branch or agency of the state government whose costs are paid wholly or in part from funds held in the State Treasury, except:

(a) The Legislative Assembly, the courts and their officers and committees;

(b) The Public Defense Services Commission; and

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

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

(4) “Geothermal Resource” as defined in ORS 522.005(11) means the natural heat of the earth, the energy, in whatever form, below the surface of the earth present in, resulting from, or created by, or which may be extracted from the natural heat, and all minerals in solution or other products obtained from naturally heated fluids, brines, associated gases, and steam, in whatever form, found below the surface of the earth, exclusive of helium or oil, hydrocarbon gas or other hydrocarbon substances, but including, specifically:

(a) All products of geothermal processes, embracing indigenous steam, hot water and hot brines;

(b) Steam and other gases, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations;

(d) Any by-product derived from them.

(5) “In-Depth Evaluation” is a comprehensive review conducted by a mineral resource consultant of the economic geology of the area where a mineral right occurs. The purpose of this evaluation is to determine if significant mineral and/or geothermal resources exist in or proximate to the mineral right, and to establish a value for the mineral right. This evaluation involves a comprehensive review of geologic reports and maps as well as any publicly available exploration data. It may also involve a field visit to examine the geology of the area where the mineral right occurs; the taking and analysis of samples; and the performance of other mineral exploration field techniques. The mineral resource consultant will present the results of an in-depth evaluation to the Department in writing.

(6) “Mineral Reservation” is a clause in a deed that specifically retains all, or a portion of a mineral right.

(7) “Mineral Resource” refers to a concentration of naturally occurring solid, liquid, or gaseous material in or on the Earth’s crust in such form and amount that economic extraction of a mineral commodity is currently or potentially feasible at some time in the future.

(8) “Mineral Resource Consultant” refers to the Oregon Department of Geology and Mineral Industries; a registered geologist with expertise in mineral resource appraisal or economic geology; or a state certified appraiser with expertise in mineral appraisal.

(9) “Mineral Right” is an ownership interest in the mineral and/or geothermal resources of a parcel of land. The owner of a mineral right may or may not be the owner of the surface of the parcel. A mineral right may include all metallic, non-metallic, and energy minerals (including oil and gas) as well as geothermal resources, or may specify/exclude some particular types of minerals (for example, limit mineral ownership to just the metallic and non-metallic minerals, or exclude ownership to the sand and gravel).

(10) “Non-Geothermal” refers to a parcel of land that is not known to contain geothermal resources based on geothermal exploration and other geologic information or is not located in a geologic setting that appears to be favorable for the occurrence of geothermal resources.

(11) “Non-Mineral” refers to a parcel of land that is not known to contain mineral resources based on mineral exploration and other geologic information, or is not located in a geologic setting that appears to be favorable for the occurrence of mineral resources.

(12) “Person” is an individual at least eighteen (18) years old; a political subdivision or public agency; or any corporation, association, firm, partnership, joint stock company; or quasi-public corporation registered to do business in the State of Oregon.

(13) “Preliminary Evaluation” is an initial, cursory review conducted by a mineral resource consultant of the economic geology/mineral potential of the area where a mineral right occurs. This evaluation involves a brief review of geologic reports and maps as well as what exploration data may be available. The purpose of this evaluation is to determine if potentially significant mineral and/or geothermal resources may exist in or proximate to the mineral right, and if an in-depth evaluation is warranted. The mineral resource consultant will present the results of a preliminary evaluation to the Department in writing.

(14) “Relative Value” is an estimate of the non-monetary value of a mineral and/or geothermal resource relative to another mineral or geothermal resource. A relative value may be expressed in terms of how closely the geologic characteristics of the mineral and geothermal resources of one mineral right compare to another.

(15) “Release” means the transfer of ownership of a mineral right to another person.

(16) “Significant Mineral or Geothermal Resources” means that the Department determines, based on a preliminary or in-depth evaluation, that mineral and/or geothermal resources could be economically developed in the future.

History

Statutory/Other Authority: ORS 273.045, 273.551 & 273.775 - 273.790
Statutes/Other Implemented: ORS 273.780 - 273.790
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05
LB 23, f. 4-18-75, ef. 5-11-75

Or. Admin. R. 141-073-0110 Policies

(1) ORS 273.780 requires that:

(a) The mineral rights in property owned by any agency of the State of Oregon, or retained by a state agency after the sale or exchange of such property, are the property of the State of Oregon.

(b) Except as provided in ORS 273.785:

(A) Proceeds from the mineral rights held by the state shall accrue to the Common School Fund, and

(B) The State Land Board shall act for the state in any transaction involving the exploration for, or development, sale or exchange of mineral rights belonging to the State of Oregon.

(C) All mineral rights owned by the State of Oregon shall be retained by the state unless the State Land Board determines that the sale or exchange of the rights is for the purpose of “..obtaining the greatest benefit for the people of this state consistent with the conservation of lands under its jurisdiction under sound techniques of land management.” as provided by Article 8, Section 5(2) of the Oregon State Constitution.

(2) The Department shall administer these rules to ensure to the greatest extent possible that agencies applying for a release of state-owned mineral rights receive timely, consistent, predictable and fair treatment.

(3) The Land Board will not authorize a release, sale or exchange of a mineral right without first making a finding that the release, sale or exchange is for the purpose of obtaining the greatest benefit for the people of this state, consistent with the conservation of lands under its jurisdiction under sound techniques of land management.

(4) No mineral right shall be released, sold or exchanged without Land Board review and approval.

(5) The evaluation of mineral and geothermal resources is often difficult and costly. The accuracy of an evaluation or determination of the value of a mineral right is highly contingent on how much geologic and exploration data are available for review. Unless the Department determines that:

(a) There is a good possibility based on a preliminary evaluation by a mineral resource consultant that significant mineral and/or geothermal resources could occur in the land bounded by a mineral right; and

(b) Significant revenue would be received by the Common School Fund from the sale of the mineral right, the Department will not spend its financial resources to retain the services of a mineral resource consultant to conduct a more in-depth evaluation of the value of the mineral right.

(6) The Department will proceed with the processing of applications for the release, sale, or exchange of mineral rights only to the extent that staff availability and budget permit.

History

Statutory/Other Authority: ORS 273.045, 273.551 & 273.775 - 273.790
Statutes/Other Implemented: ORS 273.780 - 273.790
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05
LB 23, f. 4-18-75, ef. 5-11-75

Or. Admin. R. 141-073-0115 Mineral Right Release, Sale and Exchange Application Process

(1) State agencies that want to release, sell or exchange mineral rights shall notify the Department in writing of the details of the proposed release, sale or exchange at least sixty days prior the date of the proposed transaction. This notification shall include:

(a) The legal description of the subject mineral rights to be conveyed as contained in the deed;

(b) A legal description of the property limits on which the subject mineral rights occur;

(d) A map showing the location of the subject property and mineral rights relative to urban growth boundaries;

(e) The zoning of the land on which the mineral right is located;

(f) Any appraisals that have been conducted of the property, particularly those that address the value of the subject mineral rights;

(g) Any geologic reports, mineral and geothermal resource evaluations, appraisals, and other relevant information concerning the subject mineral rights held by the agency requesting the release, sale or exchange of the mineral rights;

(h) The reason(s) the agency wants to release, sell or exchange the mineral rights;

(i) The name, address, and telephone number of the person who wants to acquire the subject state-owned mineral rights;

(j) The consideration being offered by the person requesting the release, sale or exchange of the state-owned mineral rights; and

(k) Documentation that the agency requesting the release, sale or exchange has completed the Department of Administrative Services’ surplus property process (OAR 125-045).

(2) Upon receipt of the written notification, the Department will review it for completeness. If the notification is determined by the Department to be incomplete, the Department will contact the agency to advise it of what additional information is required.

(3) If the notification is determined by the Department to be complete, the Department shall process it in accordance with the procedures provided in OAR 141-073-0118 and 141-073-0119.

(4) The Department may, at its discretion, use any geologic reports or mineral and geothermal resource evaluations and appraisals provided by an agency requesting the release, sale or exchange of mineral rights instead of retaining a mineral resource consultant as provided in OAR 141-073-0118 through 141-073-0119.

History

Statutory/Other Authority: ORS 273.045, 273.551 & 273.775 - 273.790
Statutes/Other Implemented: ORS 273.780 - 273.790
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05
LB 23, f. 4-18-75, ef. 5-11-75

Or. Admin. R. 141-073-0118 Mineral Right Release or Sale Process

(1) If the subject mineral right proposed for release or sale is owned by an agency other than the Department:

(a) The Department shall request a mineral resource consultant to conduct a preliminary evaluation of the mineral right. This evaluation will be the opinion of the mineral resource consultant regarding the actual or possible presence, extent and grade of, and demand for the mineral resources within the mineral right, and will be presented in writing to the Department.

(b) If no significant mineral or geothermal resources are believed by the mineral resource consultant to exist, the Department will submit the request to the Land Board for its consideration. If Land Board approval is granted, the Department will release the state-owned mineral rights to the agency/person applying for them.

(2) If the mineral resource consultant’s preliminary evaluation to the Department indicates that significant mineral and/or geothermal resources exist within the limits of the mineral right, and any revenue derived from the mineral right would:

(a) Not accrue to the Common School Fund, the agency submitting the request for release or sale of the mineral right shall, at their own cost, retain a mineral resource consultant to conduct an in-depth evaluation to determine a value for the mineral and geothermal resources.

(b) Accrue to the Common School Fund, the Department may either retain a mineral resource consultant to conduct an in-depth evaluation to determine a value for the mineral and geothermal resources, or advise the agency that it will not release the mineral right for sale or exchange.

(3) If the mineral resource consultant’s in-depth evaluation indicates the presence of significant mineral and/or geothermal resources within the limits of the mineral right, the Department may either:

(a) Advise the agency that it will reserve the mineral right, or

(b) After receipt of Land Board approval, sell the mineral right at a value based on either the mineral resource consultant’s in-depth evaluation plus any cost incurred by the Department to retain the consultant, or for a price negotiated by the Department.

(4) If the mineral consultant’s in-depth evaluation determines that no significant mineral and/or geothermal resources exist within the limits of the mineral right, the Department shall submit the request to the Land Board for its consideration. If Land Board approval is granted, the Department will release the state-owned mineral rights to the agency/person applying for them.

(5) As provided in OAR 141-073-0115(4), the Department may, at its discretion, use information provided by the agency requesting the release or sale of mineral rights instead of using/requiring a mineral resource consultant for some or all of the reports and evaluations required.

History

Statutory/Other Authority: ORS 273.045, 273.775 - 273.79 & OR Const., Art. VIII & Sec. 5
Statutes/Other Implemented: ORS 273.775 - 273.79
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05

Or. Admin. R. 141-073-0119 Mineral Right Exchange Process

(1) If the subject mineral right proposed for exchange is owned by an agency other than the Department:

(a) The Department shall request a mineral resource consultant to conduct a preliminary evaluation of the state-owned mineral right(s) as well as the right(s) being offered for exchange. This preliminary evaluation will be the opinion of the mineral resource consultant regarding the actual or possible presence of mineral resources within the mineral rights, and will be presented in writing to the Department.

(b) If the mineral consultant’s preliminary evaluation to the Department indicates that no significant mineral or geothermal resources exist within the mineral rights held by the state or those being offered for exchange, the Department will submit the request to the Land Board for its consideration. If Land Board approval is granted, the Department will release the state-owned mineral rights to the agency/person applying for them in exchange for their mineral rights.

(c) If the mineral resource consultant’s preliminary evaluation to the Department indicates that significant mineral and/or geothermal resources may occur within the limits of any of the mineral rights proposed for exchange, the Department may either:

(A) Advise the agency proposing the exchange that it will reserve the state-owned mineral right; or

(B) Request that the agency retain at its own cost a mineral resource consultant to conduct an in-depth evaluation of each of the mineral rights proposed for exchange. The purpose of this evaluation will be for the mineral resource consultant to develop a relative value for each mineral right. To establish this relative value, the following factors, at a minimum, are to be considered:

(i) Types of minerals reserved;

(ii) Geologic setting and the likelihood that mineral or geothermal resources could occur in that setting;

(iii) The location of the mineral right relative to the infrastructure required to develop it; and

(iv) Possible markets for any mineral or geothermal resources. This in-depth evaluation will not be an appraisal of the monetary value of each mineral right, but rather the opinion of the mineral resource consultant regarding the actual or possible presence, extent and grade of, and demand for the mineral resources within each mineral right, and a comparison of one mineral right to another.

(d) If the mineral resource consultant’s preliminary or in-depth evaluation indicates that the mineral rights of the parcels to be exchanged are of approximately equivalent relative value, the Department may either advise the agency that it will not exchange the mineral rights, or submit the request to the Land Board for its consideration. If the Land Board approves an exchange, the Department will authorize the exchange to proceed and release the state-owned mineral rights to the agency/person applying for them in exchange for their mineral rights.

(e) If the mineral resource consultant’s preliminary or in-depth evaluation to the Department indicates that the value of one mineral right is substantially greater than the other, the Department will advise the agency proposing the exchange of this inequality and the possible need to make adjustments to the trade.

(f) The Department will not release state-owned mineral rights having a value that is greater than those being offered in exchange unless it finds that the greatest benefit for the people of this state is obtained through the exchange.

(2) As provided in OAR 141-073-0115(4), the Department may, at its discretion, use information provided by the agency requesting the release or sale of mineral rights instead of using/requiring a mineral resource consultant for some or all of the reports and evaluations required.

History

Statutory/Other Authority: ORS 273.045, 273.775 - 273.79 & OR Const., Art. VIII & Sec. 5
Statutes/Other Implemented: ORS 273.775 - 273.79
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05

Or. Admin. R. 141-073-0125 Form of Reservation

Whenever mineral or geothermal resources rights are retained in lands, the deed executed by the state agency selling or exchanging the surface rights shall contain the following reservation clause:

"Excepting and reserving to itself, its successors, and assigns all minerals as defined in ORS 273.775(1), including soil, clay, stone, sand, and gravel*, and all geothermal resources, as defined in ORS 273.775(2), together with the right to make such use of the surface as may be reasonably necessary for prospecting for, exploring for, mining, extracting, reinjecting, storing, drilling for, and removing, such minerals, materials*, and geothermal resources. In the event use of the premises by a surface rights owner would be damaged by one or more of the activities described above, then such owner shall be entitled to compensation from state's lessee to the extent of the diminution in value of the real property, based on the actual use by the surface rights owner at the time the state's lessee conducts any of the above activities."

NOTE: *To be deleted in the individual case, as approved by the State Land Board.

History

Statutory/Other Authority: ORS 273.045, 273.551 & 273.775 - 273.790
Statutes/Other Implemented: ORS 273.780 - 273.790
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05
LB 5-1984, f. & ef. 10-10-84
LB 3-1984(Temp), f. & ef. 4-26-84
LB 8-1982, f. & ef. 8-25-82
LB 2-1982(Temp), f. & ef.3-17-82
LB 45, f. & ef. 10-21-77
LB 23, f. 4-18-75, ef. 5-11-75

Or. Admin. R. 141-073-0215 Minerals Registry

(1) Pursuant to the provisions of ORS 273.790, the Department shall establish and maintain a registry of mineral and geothermal resource rights placed under the jurisdiction of the State Land Board.

(2) This registry shall be used by the Department, all state agencies, and the public to know:

(a) The location of mineral rights owned by the State of Oregon; and

(b) The availability of these rights for exploration and mineral leasing.

(3) The registry shall identify the surface owner wherever possible.

(4) State-owned mineral and geothermal resource rights in parcels of less than 40 acres shall not be listed in the registry.

(5) All state agencies owning mineral and geothermal resource rights shall report changes in the ownership status of those rights in writing to the Department within 30 days of such changes. Changes include, but are not limited to the purchase, sale or exchange of mineral rights or parcels containing mineral rights. The Department shall add data concerning such purchases, sales or exchanges of mineral rights or parcels containing mineral rights to the registry upon receipt of written notification.

(6) The Department shall maintain a record of the issuance, expiration, or cancellation of each mineral or geothermal resource lease.

History

Statutory/Other Authority: ORS 273.045, 273.551 & 273.775 - 273.790
Statutes/Other Implemented: ORS 273.780 - 273.790
DSL 1-2005, f. 2-11-05, cert. ef. 2-28-05, Renumbered from 141-073-0225, 141-073-0230, 141-073-0240, 141-073-0250
LB 23, f. 4-18-75, ef. 5-11-75

Division 79 ELLIOTT STATE RESEARCH FOREST MANAGEMENT PLAN

Or. Admin. R. 141-079-0001 Elliott State Research Forest - Forest Management Plan

The 2024 Forest Management Plan for the Elliott State Research Forest, as promulgated by the State Land Board and the Department of State Lands, is hereby adopted by reference.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: Oregon Constitution, Article VIII, Section 5, ORS 273.041 & ORS 273.045
Statutes/Other Implemented: ORS 273.171 & ORS 530.450-530.520
DSL 2-2025, adopt filed 04/09/2025, effective 04/09/2025

Division 80 LOWER WILLAMETTE RIVER MANAGEMENT PLAN

Or. Admin. R. 141-080-0105 Lower Willamette River Management Plan

The 1992 Lower Willamette River Management Plan as promulgated by the State Land Board and the Division of State Lands is hereby adopted by reference.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.045
LB 4-1992, f. & cert. ef. 9-15-92
LB 1-1986, f. & ef. 1-22-86
LB 30, f. 9-22-75, ef. 9-26-75
LB 14, f. 1-21-74, ef. 2-11-74
LB 12(Temp), f. & ef. 10-18-73

Division 81 NAVIGABLE RIVERS OF OREGON

Or. Admin. R. 141-081-0050 Navigable Rivers of Oregon

(1) The State of Oregon, acting by and through its State Land Board, hereby declares, on the basis of investigations and hearings held under ORS 274.029 (1973) and 274.034 (1973), that the Rogue River is a navigable river of the State of Oregon from Grave Creek (River Mile 68.4) to Gold Beach, Oregon, (River Mile 0.0). The Rogue River is navigable by virtue of the fact that on February 14, 1859, it was susceptible of being used in its ordinary condition as a highway for commerce, trade, and travel in the customary modes of trade and travel on water.

NOTE: This determination and declaration applies only to the river reach referred to herein and does not imply that any other reach of the river is navigable or non-navigable pursuant to ORS 274.029 (1973) and 274.034 (1973).

(2) The State of Oregon, acting by and through its State Land Board, hereby declares, on the basis of investigations under ORS 274.029 (1973) and 274.034 (1973), that the McKenzie River is a navigable river of the State of Oregon from its confluence with the Willamette River to a point known as Dutch Henry Rock, near River Mile 37.

(3) The State of Oregon, acting by and through its State Land Board, hereby declares, on the basis of investigations under ORS 274.029 (1973) and 274.034 (1973), that the Umpqua River is a navigable river of the State of Oregon from its mouth (River Mile 0.0) near Winchester Bay, Oregon, to the head of tidewater (approximately River Mile 28) near Scottsburg, Oregon.

History

Statutory/Other Authority: ORS 273.045 & ORS 274.034 (1973)
Statutes/Other Implemented: ORS 274.034 (1973)
DSL 3-2025, minor correction filed 05/13/2025, effective 05/13/2025
LB 41, f. & ef. 12-16-76
LB 38, f. & ef. 10-15-76
LB 29, f. 9-17-75, ef. 10-10-75
LB 25(Temp), f. & ef. 8-5-75

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

Or. Admin. R. 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 submersible land.

(b) Do not apply to the granting of:

(A) Easements on state-owned submerged and/or submersible land governed by Division 122 or Division 123 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;

(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 remediation and habitat restoration activities governed by Division 145 of the Department’s administrative rules; and

(G) 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 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 6-2020, minor correction filed 05/12/2020, effective 05/12/2020
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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;

(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;

(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;

(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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0265 Types of Uses and Required Authorizations

(1) All uses of, and structures occupying state-owned submerged and 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;

(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; measurement excludes calculation of associated gangways, pilings, dolphins, mooring buoys, protective and shear booms and boat ramps;

(b) Floating recreational cabins of 1,500 square feet or less; measurement excludes calculation of 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, pilings, dolphins, and private boat ramps;

(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;

(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) Limited Duration uses are exempt from authorization under these rules.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 shall review it for completeness. If the structure is a wharf as defined in ORS 780.040 and in these rules, the Department shall 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 must 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 shall result in the automatic termination of the wharf certification.

(8) The Department shall 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0275 Application Requirements for a Lease or Public Facility License

(1) Any person wanting to use state-owned submerged and 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 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 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

(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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0285 General Lease and Public Facility License Conditions and Form

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

(2) Subject to the terms of an existing lease or public facility license or as otherwise agreed by the Department, the applicant shall have ninety (90) calendar days from the date of offer to execute a lease or public facility license with the Department. The Department may revoke the offer after ninety days, at which time the applicant may re-apply for the proposed use in accordance with OAR 141-082-0275(3). Unless otherwise approved by the Director, the initial term for a lease or public facility license for state-owned submerged and submersible land shall not exceed 15 years. The length of the initial term for a lease or public facility license shall be determined by the Department and shall 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

(4) 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.

(5) 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 shall be determined by the Department and shall be reasonable and within generally accepted business practices. A certificate of 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.

(6) State-owned submerged and 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 submersible land;

(B) Limited in duration; and

(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(6)(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.

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

(8) 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.

(9) The holder shall not encumber the rights held under a Waterway Use Authorization, nor mortgage or grant a security interest in the holder’s interest in the Waterway Use Authorization without prior written consent of the Department. Written consent shall be applied for on a form provided by the Department.

(10) The holder shall pay a non-refundable fee of $375 for each request for DSL’s approval of a consent agreement.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 shall 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 if;

(A) No changes in size or use have been made within the leasehold area, and

(B) The application was received within 90 days of expiration of the lease

(c) If changes in use or size have been made within the leasehold area, then a non-refundable $750 application fee is required.

(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 shall 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 shall provide written notice to the holder that the lease or public facility license that the lease or public facility license shall not be renewed. In that event, the lease or public facility license shall 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0295 Lease and Public Facility License Modifications for Size and Use

(1) Change in Use: The holder of a lease or public facility license may not change the authorized use without prior written authorization from the Department. The holder shall submit an application to the Department that includes certification indicating that the proposed change is consistent with local, state, or federal law. The holder shall submit an application to the Department on a form provided by the Department together with an application fee of $750.

(2) Reconfiguration of existing Uses and Structures: 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 must provide the Department written notice of the change 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.

(3) Increase in area: The holder of a lease or public facility license may not increase the authorized area without prior written authorization from the Department. The holder shall submit an application to the Department that includes certification indicating that the proposed expansion is consistent with local, state, or federal law. The holder shall submit an application to the Department on a form provided by the Department together with an application fee of $750.

(4) Decrease in area: The holder of a lease or public facility license may reduce the size of the authorized area without prior written authorization from the Department. However, the holder 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.

(5) The Department will process and review all applications for changes of the authorized use or for an increase in 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 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, 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.

(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 (for example, the rental of boat slips).

(2) Assignment of a Lease:

(a) The holder of a lease shall 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 shall prepare an assignment form for the signature of the lessee, the proposed assignee, and the Department. The assignment shall 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 shall 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.

(d) If the application for assignment is approved by the Department, the Department shall prepare an assignment form for the signature of the licensee, the proposed assignee, and the Department. The assignment shall 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 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 actual annual 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 shall 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 submersible land. Under the circumstances identified in OAR 141-082-0305(7), the Department shall choose the method to be used to determine the compensation owed to the Department for a use of state-owned submerged and submersible land.

(5) Once an applicant or the Department has selected a method of determining compensation, that method shall 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 shall be the greater of:

(a) $0.0085 per square foot times the lease area or four hundred and six dollars ($406) which is rate in effect in July 2017. The base minimum annual compensation rates shall 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 shall be determined by the Department using the flat rate method which shall 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 shall 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 shall 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) shall 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 shall not be used for establishing the assessed or appraised value [AV] unless the assessed value is readily available and reflective of comparable similarly situated tax lots. If not, the assessed or appraised value [AV] of privately owned comparable tax lots shall be substituted. In cases where the adjacent riparian tax lot is less than 100 feet deep, the Department shall assume the adjacent riparian tax lot has a depth of 100 feet and calculate the assessed or appraised value [AV] based on this derived area.

Formula Factors:

AV = Assessed value or appraised value (as defined in OAR 141-082-0255(8) and (10) of these rules) whichever is less except as stated in OAR 141-082-0305(14) and (15).

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 $0.0298 per square foot (which shall increase each year on July 1st by three percent) x LA; or

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

(b) Non-commercial marinas and docks. The annual lease compensation payment calculation is the lesser of the:

(A) Flat rate method of $0.0298 per square foot (which shall increase each year on July 1st by three percent) x LA; or

(B) 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 $0.0298 per square foot (which shall increase each year on July 1st by three percent) x LA; or

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

(d) Individual floating homes and similar structures and uses. The annual lease compensation calculation is the lesser of the:

(A) Flat rate method of $0.0298 per square foot (which shall increase 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. The annual lease compensation is $348 (which shall increase each year on July 1st by three percent) 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 $0.0148 per square foot (which shall increase 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 $0.5109 per square foot (which shall increase 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 $0.5967 per square foot (which shall increase 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 2017. Each flat rate method factor shall be increased by three percent every year on July 1st. Annual lease compensation shall 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 shall be applied is that which is in effect at the time of the execution of the lease. The annual compensatory payment for executed leases shall also be adjusted/redetermined annually on each lease anniversary date by increasing the annual lease compensation payment by three percent. 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 shall be calculated by the Department on a square foot basis of state-owned submerged and 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 shall 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 shall 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 shall be conducted at the lessee or lease applicant's expense and prepared by a state-certified appraiser. The Department shall 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 shall 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 shall 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 shall not be less than the base minimum annual compensatory payment as defined by OAR 141-082-0305(6).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0310 Removal of Unauthorized Structures

(1) The Department is authorized to seize a structure on, under or over state-owned submerged or submersible lands, if;

(a) The Department determines, after providing notice and opportunity for a hearing, that the structure is an abandoned structure or a derelict structure; and

(b) The owner of the structure has failed to correct the problems identified in the notice within 20 days or a longer reasonable time as specified in the notice or within any additional time that may be granted by the department.

(2)(a) The notice required under subsection (1) of this section must be delivered by certified mail, return receipt requested, to any person with an interest in the structure or the land upon which the structure is located, as determined by the Department after diligent investigation. “Diligent investigation” shall include the following:

(A) A search of the county real property records to identify the record owner of the submerged or submersible lands where the structure is located, and the record owner of the adjacent upland.

(B) Additional investigation warranted by the circumstances.

(b) The notice required under subsection (1) of this section must:

(A) Be delivered to the record owner of the submerged or submersible lands where the structure is located, if the record owner is not the State of Oregon.

(B) Be delivered to the record owner of the adjacent upland.

(C) Identify, with specificity, the Department’s proprietary interest in and jurisdiction over the state-owned submerged or submersible lands where the structure is located. If the record owner of the submerged or submersible lands is not the State of Oregon, identify the Department’s basis for asserting State ownership of the submerged or submersible lands, and state that the recipient has the right to contest the State’s claim of ownership.

(3) The Department shall contact the property owner(s) who own riparian land that is adjacent to where the abandoned or derelict structure is located.

(4) Any person with an interest in the structure must, within 20 days of service of the notice, either;

(a) Provide written notice to the Department of their intent to authorize or remove the structure, or,

(b) Request a hearing. The notice must be on a form provided by the Department.

(5) If a person with an interest in the structure wants to obtain an authorization from the Department, the owner of the structure must submit a complete application within 30-days of service of the notice.

(a) Submission of an application under this section does not ensure that an authorization would be issued.

(b) If an application is submitted, the Department may not seize the structure while the application is under review.

(6) If a person with an interest wishes to remove the structure, that person must do so within 90 days of notice, or as otherwise agreed to by the Department.

(7) If a person with an interest in the structure wants to challenge the actions proposed in the notice, the person may request a hearing.

(a) The hearing request must be received by the Department within 20 days of service of the notice.

(b) The request must indicate if the person contends that the structure is not abandoned or derelict, or indicate such other specific grounds on which seizure is challenged

(c) Upon receipt of a request for a hearing, the Department shall suspend further action to seize the structure until the Director issues the Department’s Final Order.

(8) Upon receipt of a request for a hearing, the Department shall process the hearing request as follows:

(a) The Department shall refer the matter to the Office of Administrative Hearings for a contested case hearing.

(b) The Administrative Law Judge shall issue a proposed order, making a recommendation for the Department’s Final Order.

(9) After the hearing:

(a) The Director shall issue a Final Order, which is an order in a contested case and is subject to review under ORS 183.482.

(b) If the Department determines after a hearing that seizure of the structure is not warranted under the law, the Department shall immediately release custody of the structure to the owner who requested the hearing and may not charge the owner any costs incurred by the Department in removal, salvage, storage or disposal of the structure.

(c) If the Department determines after a hearing that seizure of the structure is warranted, the Department may seize the structure and remove, salvage or dispose of it, as the Department deems appropriate.

(d) The Department shall mail a written statement of the Department’s Final Order to all persons who requested a hearing under this section.

(10) If the owner fails to either; (a) submit an application for an authorization, (b) remove the structure or (c) request a hearing within the time allowed in the notice, the Department’s Notice shall become a Final Order by Default and the Department may immediately seize the abandoned or derelict structure. The Department may remove, salvage, store or dispose of any structure seized under this section.

(11) Nothing in these rules affects the ability of the Department to:

(a) Investigate and prosecute trespasses on and damage to state lands under ORS 273.185; or

(b) Immediately seize without notice a structure that presents a hazard to navigation or an imminent threat to public health or safety.

(12) If the Department seizes a structure without notice under this subsection and the Department decides to salvage or dispose of the structure, the Department shall provide notice as provided for in OAR 141-082-0310(2).

(13) The owner of an abandoned or derelict structure is liable to the Department for all costs arising out of removal, salvage, storage and disposal of a structure seized under this rule. However, an owner of a structure whose only interest in the structure is a security interest is not liable for costs arising out of the removal, salvage, storage or disposal of a structure under these rules. Any order imposing liability for the costs is an order other than a contested case and is subject to review under ORS 183.484.

(14) If the Department sells a structure seized under this rule, the liability imposed upon the owner shall be reduced by the net proceeds of the sale.

(15) For removal or seizure of abandoned and derelict vessels, the Department shall follow the process outlined in ORS 830.908 through 830.944.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0311 Submerged Lands Enhancement Fund

(1) The Submerged Lands Enhancement Fund (fund) is a fund established in the State Treasury separate from the General Fund. Interest earned by the Submerged

Lands Enhancement Fund shall be credited to the fund. Moneys out of the fund are intended to be used to enhance, improve or protect state-owned submerged and submersible lands.

(2) The fund shall consist of:

(a) Moneys recovered by the Department for payments made from the fund from the owner of an abandoned or derelict structure.

(b) Up to 20 percent of the revenue collected by the Department per biennium pursuant to the Department’s granting of leases, easements, registrations, and other permissions to use or occupy state-owned submerged or submersible lands.

(3) Moneys in the Submerged Lands Enhancement Fund may be used to pay the expenses of the Department associated with management and enhancement activities on state-owned submerged and submersible lands, including but not limited to:

(a) Removal, salvage, storage and disposal of abandoned or derelict structures;

(b) Removal and disposal of marine debris;

(c) Assistance with the salvage, towing, storage and disposal of abandoned or derelict vessels pursuant to ORS 830.908 to 830.944.

(d) Engagement in activities to improve water quality, watershed enhancement and fish and wildlife habitat on submerged and submersible lands.

(4) The Department shall select and prioritize projects for funding using an application review team consistent with requirements specified in this rule.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17

Or. Admin. R. 141-082-0312 Grant Eligibility

Eligibility Requirements: The Department may use moneys in the fund to provide funding to the following entities to assist the Department in completing any of the management or enhancement activities on state owned submerged or submersible land provided for in subsection (3) above;

(1) State agency,

(2) County,

(3) City,

(4) Water improvement district,

(5) Watershed council,

(6) Park and recreation district,

(7) Port district,

(8) Federal recognized Indian tribe, or

(9) Non-profit organization.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17

Or. Admin. R. 141-082-0313 Application Process

Application Requirements:

(1) Depending on availability of funds, the Department shall periodically solicit applications for requesting moneys from the Submerged Lands Enhancement fund for eligible activities.

(2) Entities are limited to those identified in OAR 141-082-0312. Applications must be submitted to the Department consistent with these rules and by the deadline established by the Department.

(3) Applications for funding shall be submitted using forms provided by the Department and provide the following information;

(a) Applicant name and contact information.

(b) Participating partners, if any.

(d) Detailed description of purpose and need for project.

(e) Relevancy to protect Public Trust Values (recreation, commerce, fisheries and navigation).

(f) Project location.

(g) Local jurisdiction approval.

(h) Project schedule including times of project beginning and completion.

(i) Amount of funding requested.

(j) Itemized budget.

(k) Confirmation of contributing match.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17

Or. Admin. R. 141-082-0314 Application Review and Project Evaluation

(1) The Department shall use an application review team to assist in the review and evaluation of eligible projects, prioritize funding requests and recommend funding allocation. Members of the review team may include, but are not limited to:

(a) Oregon Department of Fish and Wildlife,

(b) Oregon Department of Environmental Quality

(d) Non-Profit Organization

(2) The application review team shall make funding recommendations to the Director based on the following criteria;

(a) Significance of benefit to state owned land.

(b) Protection or enhancement of Public Trust Values.

(d) Likelihood of project success.

(e) Ability to meet match obligation.

(3) Limitations of Use of Submerged Lands Enhancement Funds;

(a) Activities associated with compensatory mitigation requirements shall not be funded.

(b) 25% match is required for projects not initiated by the Department (may be in-kind or cash).

(c) Activities must be associated with management or enhancement of state-owned submerged or submersible lands consistent with these rules.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17

Or. Admin. R. 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 submersible lands pursuant to ORS 274.992.

(3) The Director shall 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 shall 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;

(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 shall not be less than $50 per day, or more than $1,000 per day for violation of an authorization issued under ORS 274.992 or violation of any administrative rule adopted under ORS 274.

(6) In imposing a penalty under OAR 141-082-0315 of these rules, the Director shall 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;

(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 141-082-0315 shall 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(7), interest shall accrue at the maximum rate allowed by law.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 shall 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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0325 Registration Requirements and Provisions

(1) All persons:

(a) Owning or placing structures on, or using state-owned submerged and 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 shall 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.

(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.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0330 Registration Terms and Conditions

(1) A registration issued by the Department shall 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 shall 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 shall provide a copy of the registration to the appropriate county official in the county where the registered structure is located.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 141-082-0335 Fees

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

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

(b) $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 (measurement excludes calculation of associated gangways, dolphins, pilings and protective booms).

(c) $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. Measurement excludes calculation of associated gangways, dolphins, pilings and protective booms.

(d) $700 on and after January 1, 2017 for a floating recreational cabin. Measurement excludes calculation of pilings, dolphins, mooring buoys, and protective booms.

(e) $250 on and after January 1, 2017 for a water sport structure, pilings, or a boat ramp not associated with another authorized waterway structure.

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

(a) Erosion control structures, Rip-rap and tide gates.

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

(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) shall be determined on a case by case basis and be not less than $250.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Or. Admin. R. 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 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 shall 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, s/he may submit an appeal for a contested case hearing pursuant to ORS 183.413 through 183.470.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 274
DSL 2-2026, amend filed 05/04/2026, effective 07/01/2027
DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17
DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13

Division 83 RULES FOR GRANTING EASEMENTS FOR FIBER OPTIC AND OTHER CABLES ON STATE-OWNED SUBMERGED AND SUBMERSIBLE LAND WITHIN THE TERRITORIAL SEA

Or. Admin. R. 141-083-0800 Purpose and Applicability

These rules:

(1) Govern the granting and renewal of easements for fiber optic and other cables on state-owned submerged and submersible land within the Territorial Sea.

(2) Establish a process for authorizing easements for such cables.

(3) Supersede any provisions contained in OAR 141-083-0010 through 141-083-0700 relating to fiber optic and other cables within the Territorial Sea.

(4) Do not apply to landing structures or other equipment related or connected to the cable placed on state-owned upland. Such uses are governed by, and require forms of authorization stipulated in other agency rules.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0810 Policies

(1) The placement of fiber optic and other cables on state-owned land within the Territorial Sea is recognized by the Division as a conditionally allowable use of that land, subject to and consistent with the requirements and provisions of applicable international treaties (for example, the Convention for the Protection of Submarine Cables of 1884; the Convention of the High Seas of April 1958; the Convention on the Continental Shelf of April 1958; and the Submarine Cable Act) and other applicable federal, state, and local laws.

(2) The State Land Board, through the Division, 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 VIII, Section 5(2) of the Oregon Constitution.

(3) The Division shall manage state-owned submerged and submersible land, including that within the Territorial Sea, to ensure the collective rights of the public to fully use and enjoy this resource for commerce, navigation, fishing, recreation, and other related public purposes consistent with applicable federal and state laws.

(4) Easements for cables shall be located so as to:

(a) Protect the public trust values of commerce (including fiber optic and other cable transmissions), navigation, fishing, and recreation;

(b) Conserve living marine and other seabed resources; and

(d) Comply with all applicable local, state, and federal laws including Statewide Planning Goal 19.

(5) The Division shall administer these rules to ensure to the greatest extent possible that:

(a) Persons applying for, and holding a cable easement receive timely, consistent, predictable, and fair treatment; and

(b) Public trust values (commerce, navigation, fishing, and recreation) are supported, protected and enhanced.

(6) The Division may require the placement of cables along a route that has been determined by the agency, after consultation with the easement applicant, affected state and federal agencies, and other interested persons, to best meet the policies and goals of these rules.

(7) The Division shall require that all cables be buried using the best available proven technology whenever Territorial Sea bottom conditions permit to a sufficient depth to minimize conflicts with other ocean users and industries, and recognizing the potential need to retrieve the cable for repair or removal.

(8) The Division shall not recommend approval of a cable easement to the Land Board unless the Division finds that the applicant has met the provisions of these rules and the requirements of Statewide Planning Goal 19.

(9) An approval of an easement by the State Land Board shall be conditional and not valid until the applicant has received all other authorizations required by the Division and other applicable local, state, and federal governing bodies for the placement of the cable in the Territorial Sea.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0820 Definitions

(1) “Cable” means a conductor of electricity or light with insulation or a combination of conductors insulated from one another.

(2) “Cable Easement” is an authorization issued by the Division designating the route where a cable is to be laid on state-owned submerged and submersible land within the Territorial Sea. A cable easement does not grant any other proprietary or other rights of use to the holder.

(3) “Director” means the Director of the Division of State Lands.

(4) “Division” means the Division of State Lands.

(5) “Fiber Optic Cable” means an insulated and often armored cable used to transmit telecommunications through glass fibers using pulses of light.

(6) “Goal 19” is the Statewide Planning Goal to conserve the long-term values, benefits, and natural resources of the nearshore ocean and the Continental Shelf.

(7) “Landing” means the site on shore where a fiber optic or other cable is attached to land-based cable(s). A landing may consist of a beach manhole, receiving building, and associated equipment. If the landing is located on state-owned upland, additional authorization(s) shall be obtained from the Division or other land-owning agency (for example, Oregon State Parks) as well as other required approvals from state and local government agencies.

(8) “Ocean Policy Advisory Council” or “OPAC” has the same meaning as provided in ORS 196.438.

(9) “Ocean Users” include, but are not limited to persons using the Territorial Sea for commerce, navigation, fishing and recreation.

(10) “Person” is an individual at least eighteen (18) years old, a political subdivision or public agency, or any corporation, association, firm, partnership, joint stock company, or quasi-public corporation registered to do business in the State of Oregon.

(11) “Territorial Sea” has the same meaning as provided in ORS 196.405(6). It includes the waters and seabed extending three geographical miles seaward from the line of mean low water seaward to the extent of state jurisdiction.

(12) “Territorial Sea Management Plan” has the same meaning as provided in ORS 196.405(7). It is the plan for managing Oregon’s Territorial Sea and ocean shore as required under 196.405 through 196.580.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0830 Cable Easement Application Requirements

(1) Any person wanting to place a cable in the Territorial Sea shall obtain an easement from the Division, and approval by the Land Board.

(2) Unless otherwise allowed by the Director, a fully completed application for an easement shall be submitted to the Division at least one-hundred and eighty (180) days prior to placement of any part of the cable or construction of any associated landing-related facility or equipment on state-owned submerged and submersible land within the Territorial Sea. Each application for a cable easement shall be accompanied by a non-refundable application processing fee payable to the Division in the amount indicated in OAR 141-083-0830(3) of these rules.

(3) Each application for a cable easement crossing the Territorial Sea shall be accompanied by a non-refundable deposit payable to the Division in the amount of five thousand dollars ($5,000).

(4) Should the Division, in consultation with the applicant and other interested parties, determine that it is necessary to conduct environmental or other studies necessary to assist in evaluating the project’s compliance with the requirements of Statewide Planning Goal 19 and the Territorial Sea Management Plan, the applicant shall be directly responsible for retaining and paying for the requisite studies.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0840 Pre-Application and Application Review Process

(1) Prior to submitting an application to the Division, the person wanting to place a cable on state-owned submerged and submersible land within the Territorial Sea shall meet with Division staff to discuss the proposed project, alternative routes, factors affecting cable installation, and desired schedule. The person is also encouraged to meet with affected ocean users and industries prior to meeting with the Division to discuss possible use conflicts and other issues attendant with the proposed cable route(s).

(2) Upon receipt of an application, the Division will determine if it is complete. Applications which are determined by the Division to be incomplete shall be returned to the applicant with an explanation of the reason(s) for rejection.

(3) If a rejected application is resubmitted within one hundred and twenty (120) calendar days from the date the Division returned it to the applicant, no additional application fee will be assessed.

(4) Applications determined by the Division to be complete will be circulated to various local, state, and federal agencies and other interested persons for review and comment. The Division will circulate the application according to the requirements of its State Agency Coordination Program.

(5) To obtain public comment and identify possible issues concerning the proposed cable, the Division may hold public information meetings in the vicinity of each cable landing prior to, or after receipt of an application. The person proposing the cable or easement applicant shall attend any public meetings scheduled by the Division and be prepared to discuss the project.

(6) An easement applicant may amend their application at any time in order to address issues, concerns, or information shortfalls identified by the Division or other commentors.

(7) After receipt of agency and public comment concerning the proposed project resulting from the State Agency Coordination application circulation, the Division shall determine whether additional information is needed and/or modifications required to the proposed project. The easement applicant shall then be notified in writing of the Division’s requirements.

(8) An easement applicant shall be given the opportunity to revise their proposed project or demonstrate why suggested changes are not feasible prior to the Division’s development of its recommendation to the State Land Board regarding the subject easement and related requirements for the location, construction, operation and maintenance of the cable.

(9) The Land Board may approve or deny the easement based on the recommendation of the Division and the findings required by OAR 141-083-0810(8).

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0850 Cable Easement Terms and Conditions

(1) All cable easements issued under these rules shall require approval by the State Land Board.

(2) Easement applicants may be required to obtain a surety bond to ensure that they will perform in accordance with all terms and conditions of the easement. The surety bond amount shall be determined by the Division. A cash deposit or certificate of deposit in an amount equal to the amount required for a surety bond and which names the State of Oregon as co-owner may be substituted in lieu of a bond.

(3) A cable easement issued by the Division shall be valid for an initial term of twenty (20) years, and may be renewed at the holder’s option for an additional twenty (20) year term upon application to the Division.

(4) All cables are to be buried using the best available proven technology whenever Territorial Sea bottom conditions permit to a sufficient depth to minimize conflicts with other ocean users and industries and recognizing the potential need to retrieve the cable for repair or removal.

(5) The Division shall be notified in writing by the easement holder at least ninety (90) days:

(a) Prior to any pre-planned change in the location of the cable.

(b) Prior to any change in ownership of the cable.

(c) After the discovery of any change in the location of the cable resulting from accidental contact or geologic or other natural causes.

(d) Prior to any abandonment or termination of use of the cable.

(6) If determined necessary by the Division in consultation with the easement holder and other interested parties, and if permitted by the applicable federal agency(ies) regulating the cable, the easement holder shall remove the cable from the state-owned submerged and submersible land within one (1) year following the termination of use of the cable or expiration of the easement.

(7) Easements issued pursuant to these rules may be subject to a term based payment or annual rental payments subsequently established by the Land Board pursuant to governing law for use of state-owned submerged and submersible land.

(8) Easement holders shall inspect cables to ensure that they remain both within the area authorized by the easement and buried. These inspections are to be done on a frequency to be determined by the Division in consultation with the easement holder and other interested parties.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0860 Penalties

In addition to any other penalties provided or permitted by law, the placement of any cable or related structure on state-owned land without an easement or otherwise not in compliance with these rules shall constitute a trespass, and be prosecuted pursuant to governing law.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 141-083-0870 Reconsideration of Decision

(1) An easement applicant or any other person adversely affected by the issuance or denial of a fiber optic cable or other cable easement on state-owned submerged and submersible land within the Territorial Sea may request that the Land Board reconsider the decision.

(a) Such a request shall be received by the Director no later than thirty (30) calendar days after the delivery of the decision.

(b) The Director shall review the request within sixty (60) calendar days after the date of delivery of the request.

(c) The Director may recommend to the Land Board either that the easement issuance or denial be modified based on the merits of the request, or that the Land Board authorize initiation of a contested case proceeding.

(2) If the Director recommends that the Land Board initiate a contested case proceeding, the Land Board shall select a hearing officer and proceed pursuant to ORS 183.413 through 183.470.

History

Statutory/Other Authority: ORS 196.800 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 21-1999, f. & cert. ef. 11-1-99

Division 85 ADMINISTRATIVE RULES GOVERNING THE ISSUANCE AND ENFORCEMENT OF REMOVAL-FILL AUTHORIZATIONS WITHIN WATERS OF OREGON INCLUDING WETLANDS

Or. Admin. R. 141-085-0500 General

Where headings, special fonts or double-spacing are used, they are for the convenience of the user only and have no substantive effect.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0506 Policy

(1) General Policy on Removal-Fill. No authorization to place fill or remove material from the waters of this state may:

(a) Interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation uses; or

(b) Be inconsistent with the protection, preservation and best use of the water resources of this state.

(2) Department Will Use Fair, Predictable Approach. To the extent possible, the Department will administer these rules to ensure persons receive timely, fair, consistent and predictable treatment including timely communication and consistent application and interpretation of these rules and the Removal-Fill Law.

(3) Department Will Continually Improve the Program. The Department will actively and continually pursue improvements to the authorization process in order to reduce paperwork, eliminate duplication, increase certainty and timeliness, and enhance protection of water resources.

(4) Department Will Recognize Multiple Interests. The Department will recognize the interests of adjacent landowners; tribal governments; public interest groups; soil and water conservation districts; drainage, irrigation and diking districts; watershed councils; state and federal agencies; and local government land use planning agencies.

(5) Department’s General Policies on Wetland Regulation. In regard to the regulation of wetlands, the Department will administer these rules to ensure that:

(a) The protection, conservation and best use of this state’s wetland resources, including their functions and values, are promoted through the integration and coordination of the local comprehensive plans and the Department permitting process; and

(b) A stable wetland resource base is maintained through avoidance of reasonably expected adverse impacts, and by compensating for unavoidable wetland impacts.

(6) Restoration and Conservation Programs. The Department will encourage and facilitate the restoration of waters of this state through voluntary restoration and conservation programs.

(7) Compensatory Mitigation. Through its permitting and enforcement programs, the Department will seek to offset losses of the functions and values of the water resources of this state.

(8) Mitigation Banks. The Department will allow the use of mitigation banks to offset adverse effects from removal or fill activities to the waters of this state.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0510 Definitions

The following definitions are used in addition to those in ORS 196.600 to 196.990.

(1) “ Applicant ” means a landowner, a person authorized by a landowner to conduct a removal or fill activity, or a person that proposes a removal or fill activity for construction or maintenance of a linear facility.

(2) " Aquatic Life and Habitats " means the aquatic environment including all fish, wildlife, amphibians, plants and other biota dependent upon environments created and supported by the waters of this state. Aquatic life includes communities and species populations that are adapted to aquatic habitats for at least a portion of their life.

(3) “Aquatic Resources of Special Concern” means waters of this state that provide functions, values and habitats that are limited in quantity because they are naturally rare or have been disproportionately lost due to prior impacts. These include alkali wetlands and lakes, bogs, cold water habitat, fens, hot springs, interdunal wetlands, kelp beds, mature forested wetlands, native eelgrass beds, off-channel habitats (alcoves and side channels), ultramafic soil wetlands, vernal pools, wet prairies, wooded tidal wetlands, and others as determined by the Department.

(4) “ Artificial Means ” means the purposeful movement or placement of material by humans and/or their machines.

(5) “ Authorization ” means an individual permit, general authorization, general permit or emergency authorization.

(6) " Bankfull Stage " means the two-year recurrence interval flood elevation.

(7) “ Baseline Conditions ” means the ecological conditions, wetland functions and values and the soils and hydrological characteristics present at a site before any change by the applicant is made.

(8) " Basin " means one of the eighteen (18) Oregon drainage basins identified by the Oregon Water Resources Department as shown on maps published by that agency.

(9) " Beds " means:

(a) For the purpose of OAR 141-089, the land within the wet perimeter and any adjacent non-vegetated dry gravel bar; and

(b) For all other purposes, "beds" means that portion of a waterway that carries water when water is present.

(10) " Beds or Banks " means the physical container of the waters of this state, bounded on freshwater bodies by the ordinary high water line or bankfull stage, and in tidal bays and estuaries by the limits of the highest measured tide. The “bed” is typically the horizontal section and includes non-vegetated gravel bars. The “bank” is typically the vertical portion.

(11) " Buffer " means an area immediately adjacent to or surrounding a water of this state that is set aside to protect the water of this state from conflicting adjacent land uses and to support ecological functions. The buffer area may include upland, wetland, or other waters.

(12) “ Channel ” means a natural (perennial or intermittent stream) or human made (e.g., drainage ditch) waterway that periodically or continuously contains moving water and has a defined bed and bank that serve to confine the water.

(13) “ Channel Relocation ” means a change in location of a channel in which a new channel is dug and the flow is diverted from the old channel into the new channel.

(14) “ Coastal Zone ” means the area lying between the Washington border on the north to the California border on the south, bounded on the west by the extent of this state’s jurisdiction as recognized by federal law, and the east by the crest of the coastal mountain range, excepting:

(a) The Umpqua River basin, where the coastal zone extends to Scottsburg;

(b) The Rogue River basin, where the coastal zone extends to Agness; and

(15) " Coastal Zone Certification Statement " means a signed statement by the applicant or an authorized agent indicating that the proposed project will be undertaken in a manner consistent with the applicable enforceable policies of the Oregon Coastal Management Program.

(16) “ Compensatory Mitigation (CM) ” means activities conducted by a permittee or third party to create, restore, enhance or preserve the functions and values of the waters of this state to compensate for the removal-fill related adverse impacts of project development to waters of this state or to resolve violations of ORS 196.800 to 196.905. Compensatory mitigation for removal-fill activities does not affect permit requirements of other state departments.

(17) “ Compensatory Non-Wetland Mitigation (CNWM) " means activities conducted by a permittee or third party to replace non-wetland water functions and values through enhancement, creation, restoration or preservation to compensate for the adverse effects of project development or to resolve violations of ORS 196.600 to 196.905.

(18) “ Compensatory Wetland Mitigation (CWM) ” means activities conducted by a permittee or third party to create, restore or enhance wetland and tidal waters functions and values through enhancement, creation, restoration or preservation to compensate for the adverse effects of project development or to resolve violations of ORS 196.600 to 196.905.

(19) " Comprehensive Plan " means a generalized, coordinated land use map and associated regulations and ordinances of the governing body of a local government.

(20) “ Condition ” refers to the state of a water's naturalness or ecological integrity.

(21) “ Converted Wetlands ” means agriculturally managed wetlands that, on or before June 30, 1989, were brought into commercial agricultural production by diking, draining, leveling, filling or any similar hydrologic manipulation and by removal or manipulation of natural vegetation, and that are managed for commercial agricultural purposes. “Converted wetlands” does not include any stream, slough, ditched creek, spring, lake or any other waters of this state that are located within or adjacent to a converted wetland area.

(22) “ Cowardin ” means Cowardin, L. M., V. Carter, F. C. Golet, E. T. LaRoe. 1979. Classification of wetlands and deepwater habitats of the United States, U. S. Department of the Interior, Fish and Wildlife Service, Washington, D.C.

(23) “Creation” means to convert an upland area that has never been a water of this state to a water of this state.

(24) “ Credit ” means the measure of the increase in the functions and values of the water resources of this state achieved at a mitigation site.

(25) " Day of Violation " means the first day and each day thereafter on which there is a failure to comply with any provision of the Removal-Fill Law, ORS 196.600 through 196.990, or rules adopted by the Department, or any order or authorization issued by the Department.

(26) “ Deep Ripping, Tiling and Moling ” refers to certain specific mechanical methods used to promote subsurface drainage of agricultural wetlands.

(27) " Degraded ” refers to a water of this state with diminished functions and values. For a wetland, degradation must include hydrologic manipulation (such as diking, draining, or filling) that demonstrably interferes with the normal functioning of wetland processes.

(28) “ Department ” means the Oregon Department of State Lands and the Director or designee.

(29) “ Ditch ” means a manmade water conveyance channel. Channels that are manipulated streams are not considered ditches.

(30) " Dredging " means removal of bed material using other than hand-held tools.

(31) “ Ecologically or Environmentally Preferable ” means compensatory mitigation that has a higher likelihood of replacing functions and values or improving water resources of this state.

(32) " Emergency " means natural or human-caused circumstances that pose an immediate threat to public health, safety or substantial property including crop or farmland.

(33) “ Enhancement " means to improve the condition and increase the functions and values of an existing degraded wetland or other water of this state.

(34) “ Erosion-Flood Repair” means the placement of riprap or any other work necessary to protect existing facilities and land from flood and high stream flows, in accordance with these regulations.

(35) “ Essential Indigenous Anadromous Salmonid Habitat (ESH) ” means the streams designated pursuant to ORS 196.810 that are necessary to prevent the depletion of indigenous anadromous salmonid species during their life history stages of spawning and rearing, and any adjacent off-channel rearing or high-flow refugia habitat with a permanent or seasonal surface water connection to an ESH stream.

(36) " Estuary " means:

(a) For waters other than the Columbia River, the body of water from the ocean to the head of tidewater that is partially enclosed by land and within which salt water is usually diluted by fresh water from the land, including all associated estuarine waters, tidelands, tidal marshes and submerged lands; and

(b) For the Columbia River, all waters from the mouth of the river up to the western edge of Puget Island, including all associated estuarine waters, tidelands, tidal marshes and submerged lands.

(37) " Extreme Low Tide " means the lowest estimated tide.

(38) " Fill " means the total of deposits by artificial means equal to or exceeding 50 cubic yards or more of material at one location in any waters of this state. However, in designated ESH areas (OAR 141-102) and in designated Scenic Waterways (OAR 141-100) "fill" means any amount of deposit by artificial means.

(39) " Food and Game Fish " means those species identified under ORS 506.011, 506.036 or 496.009.

(40) " Forestland " means the same as used in the Forest Practices Act and rules (ORS 527.610 to 527.992); land which is used for the commercial growing and harvesting of forest tree species, regardless of how the land is zoned or taxed or how any state or local statutes, ordinances, rules or regulations are applied.

(41) “ Functions and Values ” are those ecological characteristics or processes associated with a water of this state and the societal benefits derived from those characteristics. The ecological characteristics are “functions,” whereas the associated societal benefits are “values.”

(42) “Habitat Restoration” means the return of an ecosystem from a disturbed or altered condition to a close approximation of its ecological condition prior to disturbance.

(43) " Highest Measured Tide " means the highest tide projected from actual observations within an estuary or tidal bay (see OAR 141-085-0515).

(44) " Hydrogeomorphic Method ( HGM )" means the wetland classification based on a wetland’s location in the landscape and the sources and characteristics of water flow defined in Adamus, P.R.2001.Guidebook for hydrogeomorphic (HGM)-based assessment of Oregon wetland and riparian sites: Statewide classification and profiles. Oregon Division of State Lands, Salem, OR.

(45) “ Independent Utility ” as used in the definition of “project,” means that the project accomplishes its intended purpose without the need for additional phases or other projects requiring further removal-fill activities.

(46) “ In-Lieu Fee Mitigation (ILF) ” means a compensatory mitigation program used to compensate for reasonably expected adverse impacts of project development on waters of this state with fees paid by the applicant to an ILF sponsor, as approved by the Department.

(47) " Interagency Review Team (IRT) " is an advisory committee to the Department on mitigation banks and other compensatory mitigation projects.

(48) “ Intermittent Stream ” means any stream which flows during a portion of every year and which provides spawning, rearing or food-producing areas for food and game fish.

(49) “ Large Woody Debris ” means any naturally downed wood that captures gravel, provides stream stability or provides fish habitat, or any wood placed into waters of this state as part of a habitat improvement or conservation project.

(50) “Legacy Credits” means credits from a mitigation bank, in-lieu fee, advance mitigation project, or outlined for use in advance aquatic resource plan that has been approved, or in process of approval, prior to April 1, 2019. For a mitigation bank or in-lieu fee project to be considered in process of approval, the Department or the United States Army Corps of Engineers must have determined a Mitigation Bank Prospectus to be complete prior to April 1, 2019 and a draft Mitigation Banking Instrument to be complete before April 1, 2020. For an advance mitigation project, the Department must have issued a permit by April 1, 2019 recognizing advance credits. For an advance aquatic resource plan a complete plan must have been submitted to the Department prior to April 1, 2019 and a Final Order issued by April 1, 2020.

(51) “ Legally Protected Interest ” means a claim, right, share or other entitlement that is protected under state or federal law. A legally protected interest includes, but is not limited to, an interest in property.

(52) “ Linear Facility ” means any railway, highway, road, pipeline, water or sewer line, communication line, overhead or underground electrical transmission or distribution line, or similar facility.

(53) “ Listed Species ” means any species listed as endangered or threatened under the federal Endangered Species Act (ESA) and/or any species listed as endangered or threatened by the State of Oregon.

(54) “Locally Important” means having a high level of both function and value, as determined by the function and value assessment method being applied, or as a result of the Department’s review of public comments or the Department’s investigations.

(55) “ Location ” means the entire area where the project is located.

(56) “ Maintenance ” means the periodic repair or upkeep of a structure in order to maintain its original use. “Maintenance” includes a structure being widened by no more than twenty percent of its original footprint at any specific location in waters of this state if necessary to maintain its serviceability. “Maintenance” also includes removal of the minimum amount of sediment either within, on top of or immediately adjacent to a structure that is necessary to restore its serviceability, provided that the spoil is placed on upland.

(57) “ Material ” means rock, gravel, sand, silt and other inorganic substances and large woody debris, removed from waters of this state and any materials, organic or inorganic, used to fill waters of this state.

(58) " Mitigation " means the reduction of adverse effects of a proposed project by considering, in the following order:

(a) Avoiding the effect altogether by not taking a certain action or parts of an action;

(b) Minimizing effects by limiting the degree or magnitude of the action and its implementation;

(d) Reducing or eliminating the effect over time by preservation and maintenance operations during the life of the action by monitoring and taking appropriate corrective measures; and

(e) Compensating for the effect by creating, restoring, enhancing or preserving substitute functions and values for the waters of this state.

(59) " Mitigation Bank " or "Bank" means a site created, restored, enhanced or preserved in accordance with ORS 196.600 to 196.655 to compensate for unavoidable adverse impacts to waters of this state due to activities which otherwise comply with the requirements of ORS 196.600 to 196.905.

(60) " Mitigation Bank Instrument (MBI) " means the legally binding and enforceable agreement between the Department and a mitigation bank sponsor that formally establishes the mitigation bank and stipulates the terms and conditions of the mitigation bank’s construction, operation and long-term management.

(61) " Mitigation Bank Prospectus " or "Prospectus" means the preliminary proposal prepared by a mitigation bank sponsor describing a proposed bank.

(62) " Mitigation Bank Sponsor " or "Sponsor" means a person or single legal entity that has the authority and responsibility to fully execute the terms and conditions of a mitigation bank instrument.

(63) " Navigational Servitude " means activities of the federal government that directly result in the construction or maintenance of congressionally authorized navigation channels.

(64) " Non-Motorized Methods or Activities ” are those removal-fill activities within ESH that are completed by hand and are not powered by internal combustion, hydraulics, pneumatics or electricity. Hand-held tools such as wheelbarrows, shovels, rakes, hammers, pry bars and manually operated cable winches are examples of common non-motorized methods.

(65) “ Non-Water Dependent Uses ” means uses that do not require location on or near a waterway to fulfill their basic purpose.

(66) “ Non-Wetland Waters ” means waters of this state other than wetlands, including bays, intermittent streams, perennial streams, lakes and all other regulated waters.

(67) “ Ocean Renewable Energy ” means electricity that is generated through the conversion of energy contained in the natural properties of the ocean, including but not limited to energy contained in waves and swells, the tides and currents, ocean temperature and salinity gradients; and, ocean offshore wind power.

(68) “ Ocean Renewable Energy Facility ” means any energy conversion technology or device that is used as a necessary component of a research project, demonstration project or commercial operation to generate ocean renewable energy, including but not limited to all buoys, anchors, energy collectors, cables, control and transmission lines, and other equipment necessary or useful to the project or operation.

(69) “ Office of Administrative Hearings ” means the state agency unit that provides Administrative Law Judges to conduct contested case proceedings.

(70) “ Ordinary High Water Line (OHWL) ” means the line on the bank or shore to which the high water ordinarily rises. The OHWL excludes exceptionally high water levels caused by large flood events (e.g., 100-year events).

(71) “ Oregon Rapid Wetland Assessment Protocol (ORWAP) ” is a method for rapidly assessing wetland functions and values (as well as other attributes) in all wetland types throughout Oregon.

(72) “ Payment In-Lieu Mitigation ” means compensatory mitigation for waters of this state that is fulfilled by using funds paid to the Department. The payment in-lieu program is not approved to compensate for impacts to waters of the United States.

(73) “ Perennial Stream ” means a stream that has continuous flow in parts of its bed all year long during years of normal precipitation.

(74) " Person " means a person or a public body, as defined in ORS 174.109; the federal government, when operating in any capacity other than navigational servitude or any other legal entity.

(75) “ Plowing ” means all forms of tillage and similar physical means for the breaking up, cutting, turning over and stirring of soil to prepare it for planting crops. Plowing does not include deep ripping or redistribution of materials in a manner that changes any waters of this state to upland.

(76) " Practicable " means capable of being accomplished after taking into consideration cost, existing technology and logistics with respect to the overall project purpose.

(77) “ Preservation ” means to permanently protect waters of this state having exceptional ecological features.

(78) “ Project ” means the primary development or use, having independent utility, proposed by one person. A project may include more than one removal-fill activity.

(79) “ Project Site ” means the geographic area upon which the project is being proposed.

(80) “ Prospecting ” means to search or explore for samples of gold, silver or other precious minerals, using non-motorized methods; by filling, removing or moving by artificial means less than one cubic yard of material at any one individual site; and, cumulatively, not more than five cubic yards of material from within the bed or wet perimeter of any single ESH stream in a single year.

(81) " Public Body " as used in the statutes of this state means state government bodies, local government bodies and special government bodies (ORS 174.109).

(82) " Public Use " means a publicly owned project or a privately owned project that is available for use by the public.

(83) “ Push-Up Dam ” means a berm of streambed material that is excavated or bulldozed (i.e., pushed-up) from within the streambed itself and positioned in the stream in such a way as to hold or divert water in an active flowing stream. The push-up dam may extend part way or all the way across the stream. Push-up dams are most frequently used to divert water for irrigation purposes associated with agricultural production including livestock watering. Push-up dams are reconstructed each water-use season; high water usually flattens or breaches them; and equipment is used to breach or flatten them at the close of the water-use season.

(84) “ Reasonably Expected Adverse Effect ” and “ Adverse Impact ” means the direct or indirect, reasonably expected or predictable results of project development upon waters of this state including water resources, navigation, fishing and public recreation uses.

(85) “ Reconstruction ” means to rebuild or to replace the existing structure in-kind. “Reconstruction” includes a structure being widened by no more than twenty percent of its original footprint at any specific location in waters of this state.

(86) “ Recreational Placer Mining ” means to search or explore for samples of gold, silver or other precious minerals by removing, filling or moving material from or within the bed of a stream, using non-motorized equipment or a motorized surface dredge having an intake nozzle with an inside diameter not exceeding four inches and a muffler meeting or exceeding factory-installed noise reduction standards.

(87) " Reference Site " means a site or sites that represent the desired future characteristics and condition to be achieved by a compensatory mitigation plan.

(88) " Removal " means the taking of more than 50 cubic yards of material (or its equivalent weight in tons) in any waters of this state in any calendar year; or the movement by artificial means of an equivalent amount of material on or within the bed of such waters, including channel relocation. However, in designated ESH areas (OAR 141-102) and in designated Scenic Waterways (OAR 141-100) the 50-cubic-yard minimum threshold does not apply.

(89) “ Removal-Fill Site ” means the specific point where a person removes material from and/or fills any waters of this state. A project may include more than one removal-fill site.

(90) “Restoration " means to reestablish a former water of this state.

(91) " Riprap " means facing a bank with rock or similar substance to control erosion.

(92) “ Serviceable ” means capable of being used for its intended purpose.

(93) “ Service Area ” means the boundaries set forth in a mitigation bank instrument that include one or more watersheds identified on the United States Geological Survey, Hydrologic Unit Map -1974, State of Oregon, for which a mitigation bank provides credits to compensate for adverse effects from project developments to waters of this state. Service areas for mitigation banks are not mutually exclusive.

(94) " State Scenic Waterway (SSW )" means a river or segment of river or lake that has been designated as such in accordance with Oregon Scenic Waterway Law (ORS 390.805 to 390.995).

(95) “Stream Function Assessment Method” is a method for assessing functions and values of waters of this state that flow in channels.

(96) “ Temporal Loss ” means the loss of the functions and values of waters of this state that occurs between the time of the impact and the time of their replacement through compensatory mitigation.

(97) “ Temporary Impacts ” are adverse impacts to waters of this state that are rectified within 24 months from the date of the initiation of the impact.

(98) “ Territorial Sea ” means the waters and seabed extending three geographical miles seaward from the coastline in conformance with federal law.

(99) “ Territorial Sea Plan ” means the plan for Oregon’s territorial sea.

(100) “ Tidal Waters ” are the areas in estuaries, tidal bays and tidal rivers located between the highest measured tide and extreme low tide (or to the elevation of any eelgrass beds, whichever is lower), that is flooded with surface water at least annually during most years. Tidal waters include those areas of land such as tidal swamps, tidal marshes, mudflats, algal and eelgrass beds and are included in the Estuarine System and Riverine Tidal Subsystem as classified by Cowardin.

(101) “Voluntary” means activities undertaken by a person of their own free will, and not as a result of any legal requirement of the Removal-fill Law (ORS 196.600–196.990).

(102) “ Violation ” means removing material from or placing fill in any of the waters of this state in a manner that is inconsistent with any provision of the Removal-Fill Law (ORS 196.600 through 196. 990), rules adopted by the Department, or any order or authorization issued by the Department.

(103) " Water Quality " means the measure of physical, chemical and biological characteristics of water as compared to Oregon's water quality standards and criteria set out in rules of the Oregon Department of Environmental Quality and applicable state law.

(104) “ Water Resources ” includes not only water itself but also aquatic life and habitats therein and all other natural resources in and under the waters of this state.

(105) “ Waters of This State ” means all natural waterways, tidal and non-tidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in the boundaries of this state, all other navigable and non-navigable bodies of water in this state and those portions of the ocean shore, as defined in ORS 390.605, where removal or fill activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended.

(106) " Wet Perimeter ", as used in OAR 141-089, means the area of the stream that is under water, or is exposed as a non-vegetated dry gravel bar island surrounded on all sides by actively moving water at the time a removal-fill activity occurs.

(107) “ Wetland Hydrology ” means the permanent or periodic inundation or prolonged saturation sufficient to create anaerobic conditions in the soil and support hydrophytes.

(108) “ Wetlands ” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

History

Statutory/Other Authority: ORS 196.600-196. 692 & 196.825
Statutes/Other Implemented: ORS 196.600-196. 692 & ORS 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 4-2025, amend filed 08/20/2025, effective 01/01/2026
DSL 3-2019, minor correction filed 04/08/2019, effective 04/08/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 5-2017, amend filed 12/28/2017, effective 01/01/2018
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0515 Removal-Fill Jurisdiction by Type of Water

This section describes the types and jurisdictional limits of the waters of this state that are regulated by the Department of State Lands.

(1) Pacific Ocean. The Pacific Ocean is jurisdictional from the line of extreme low tide seaward to the limits of the territorial sea. As defined in ORS 390.605(2), the land lying between extreme low tide and the statutory vegetation line or the line of established upland shore vegetation, whichever is farther inland, is known as the “ocean shore.” “Ocean shore” does not include an estuary as defined in ORS 196.600. The “ocean shore” is regulated by the Oregon Department of Parks and Recreation.

(2) Estuaries, Tidal Bays and Tidal Rivers. Estuaries, tidal bays and rivers below the head of tide are jurisdictional to the elevation of the highest measured tide (excluding storm surge), or to the upper edge of wetland, whichever is higher. The head of tide is the farthest point upstream where a river is affected by tidal fluctuations. The highest measured tide elevation on a parcel may be determined by a land survey referenced to the closest tidal benchmark based upon the most recent tidal epoch and reference to both the tidal datum (MLLW) and the fixed geodetic datum (NAVD88). In lieu of surveyed elevations, subject to approval by the Department, highest measured tide elevation may be based upon actual tide gauge measurements during a wintertime spring tide or observation of the highest of the field indicators listed in subsections (a) through (f) below. These field indicators are often not observable within the upper riverine portion of an estuary, in which case a land survey is required:

(a) The uppermost drift or wrack (or debris) line containing small driftwood, mats of filamentous algae (algae that form long visible chains, threads, or filaments that intertwine forming a mat), seaweeds, seagrasses, pieces of bulrush or other emergent vascular plants, styrofoam or other buoyant plastic debris, bivalve shells, crab molts, or other aquatic invertebrate remains;

(b) The uppermost water mark line on an eroding bank;

(c) The uppermost water mark line (e.g., discoloration; sediment, barnacles, snails, or algae growth) visible on a hard shoreline or bank consisting of bedrock, boulders, cobbles, riprap or a seawall;

(d) The uppermost intertidal zone inhabited by a community of barnacles, limpets, and littorine snails along shorelines composed of bedrock, riprap, boulders, and/or cobble;

(e) The uppermost tidal marsh/upland boundary, as indicated by a dominant plant community characteristic of saltwater, brackish, or freshwater tidal plant communities changing to a dominant plant community typical of uplands; and/or

(f) The intertidal/upland boundary along sandy shores as indicated by the appearance of a distinct dune plant community.

(3) Waters, Including Rivers, Intermittent and Perennial Streams, Lakes and Ponds. These waters are jurisdictional to the ordinary high water line (OHWL). The OHWL can be determined by direct observation of the annual high water event, using local gauge data to estimate bankfull stage, and/or by using readily identifiable field indicators. Field indicators for OHWL include:

(a) Clear, natural line impressed on the shore;

(b) Change in vegetation from riparian (e.g., willows) to upland (e.g., oak, fir) dominated;

(c) Textural change of depositional sediment or changes in the character of the soil (e.g., from sand, sand and cobble, cobble and gravel to upland soils);

(d) Elevation below which no fine debris (needles, leaves, cones, and seeds) occurs;

(e) Presence of litter and debris, water-stained leaves, water lines on tree trunks; and/or

(f) Other appropriate means that consider the characteristics of the surrounding areas.

(4) Wetlands. Wetlands are jurisdictional within the wetland boundary.

(5) Reservoirs. The Department’s jurisdiction over reservoirs extends to the higher of either the normal operating pool level or the upper edge of adjacent wetland.

(6) Artificially Created Wetlands and Ponds. These waters are jurisdictional when they are:

(a) Equal to or greater than one acre in size;

(b) Created, in part or in whole, in waters of this state; or

(7) Exempt Artificially Created Wetlands and Ponds. Artificially created wetlands and ponds created entirely from upland, regardless of size, are not waters of this state if they are constructed for the purpose of:

(a) Wastewater treatment;

(b) Settling of sediment;

(d) Agricultural crop irrigation or stock watering;

(e) Fire suppression;

(f) Cooling water;

(g) Surface mining, even if the site is managed for interim wetlands functions and values;

(h) Log storage; or

(i) Aesthetic purposes.

(8) Jurisdictional Ditches. Except as provided under section (9) and (10) below, ditches are jurisdictional if they are:

(a) Created in wetlands, estuaries, tidal rivers or other waters of this state; or

(b) Created from upland and meet the following conditions:

(A) Contain food and game fish; and

(B) Have a free and open connection to waters of this state. A “free and open connection” means a connection by any means, including but not limited to culverts, to or between natural waterways and other navigable and non-navigable bodies of water that allows the interchange of surface flow at bankfull stage or ordinary high water, or at or below mean higher high tide between tidal waterways.

(9) Non-Jurisdictional Irrigation Ditches. Existing irrigation ditches that meet the following tests are not jurisdictional:

(a) Are operated and maintained for the primary purpose of conveying water for irrigation; and

(b) Are dewatered for the non-irrigation season except for water incidentally retained in isolated low areas of the ditch or are used for stock water runs, provision of water for fire suppression, or to collect storm water runoff.

(10) Non-Jurisdictional Roadside and Railroad Ditches. Roadside and railroad ditches that meet the following tests are not jurisdictional:

(a) Ten feet wide or less at the ordinary high water line;

(b) Artificially created from upland or from wetlands;

(d) Do not contain food or game fish.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0520 Removal-Fill Jurisdiction by Volume of Material

The following criteria are used to determine jurisdictional volume thresholds that trigger the requirement for an authorization.

(1) Oregon State Scenic Waterways (SSWs). The threshold volume is any amount greater than zero.

(2) Essential Indigenous Anadromous Salmonid Habitat (ESH ). The threshold volume is any amount greater than zero.

(3) Compensatory Mitigation Sites . The threshold volume is any amount greater than zero for compensatory mitigation sites referenced in an authorization.

(4) Ocean Renewable Energy Facilities. The threshold volume for removal-fill in Oregon’s territorial sea that is related to an ocean renewable energy facility is any amount greater than zero.

(5) All Other Waters of This State .

(a) For fill activities, any combination of either organic or inorganic material deposited by artificial means at any one location in waters of this state equal to or exceeding 50 cubic yards or the equivalent weight in tons; and

(b) For removal activities, the taking or movement by artificial means of more than 50 cubic yards of inorganic material or large woody debris, or the equivalent weight in tons in any calendar year.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & ORS 196.800 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 5-2017, amend filed 12/28/2017, effective 01/01/2018
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0525 Measuring and Calculating Volume of Removal and Fill

(1) Calculating Removal Volume. Removal volume for all waters includes the full extent of the excavation or movement within the jurisdictional areas.

(2) Calculating Fill Volume. For waters other than wetlands, fill volume is measured to the ordinary high water line (OHWL) or the highest measured tide (HMT). For wetlands, fill volume is measured to the height of the fill, excluding buildings.

(3) Calculating Volume for Channel Relocation. When calculating the volume for channel relocation, the threshold is met considering either:

(a) The volume of material removed to construct the new channel up to OHWL; or

(b) The volume that would be required to completely fill the old channel to the OHWL or HMT.

(4) Projects that Involve Both Fill and Removal. For projects that involve both fill and removal, the combined volumes are used to determine whether a permit is required.

History

Statutory/Other Authority: ORS 196.825 & 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0530 Exemptions for Certain Activities and Structures

These exemptions apply in all waters of this state except State Scenic Waterways.

(1) State Forest Management Practices. Non-federal forest management practices subject to Oregon’s Forest Practices Act conducted in any non-navigable water of this state are exempt. When these forestlands are being converted to other uses the exemption does not apply to the activities associated with the new use. Forest management practices must be directly connected with a forest management practice conducted in accordance with ORS 527.610 through 527.770, 527.990 and 527.992, such as:

(a) Reforestation;

(b) Road construction and maintenance;

(d) Disposal of slash.

(2) Fill for Construction, Operation and Maintenance of Certain Dams and Water Diversion Structures. Filling the beds of the waters of this state for the purpose of constructing, operating and maintaining dams or other diversions for which permits or certificates have been or will be issued under ORS Chapters 537 or 539 and for which preliminary permits or licenses have been or will be issued under ORS 543.010 through 543.610 is exempt.

(3) Navigational Servitude. Activities conducted by or on the behalf of any agency of the federal government acting in the capacity of navigational servitude in connection with a federally authorized navigation channel are exempt. Disposal of dredged material within the ordinary high water line of the same waterway is also exempt.

(4) Maintenance or Reconstruction of Water Control Structures. Fill or removal or both for maintenance or reconstruction of water control structures such as culverts, dikes, dams, levees, groins, riprap, tidegates, drainage ditches, irrigation ditches, and tile drain systems are exempt if:

(a) The project meets the definition of maintenance under OAR 141-085-0510(56); or

(b) The project meets the definition of reconstruction under OAR 141-085-0510(85);

(d) The maintenance or reconstruction would not significantly adversely affect wetlands or other waters of this state to a greater extent than the wetlands or waters of this state were affected as a result of the original construction of those structures.

(5) Maintenance and Emergency Reconstruction of Roads and Transportation Structures. Fill or removal for maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable roads or transportation structures, such as groins and riprap protecting roads, causeways, bridge abutments or approaches, and boat ramps is exempt.

(6) Prospecting and Non-Motorized Activities within Designated Essential Indigenous Anadromous Salmonid Habitat (ESH). A permit is not required for prospecting or other non-motorized activities resulting in removal-fill of less than one cubic yard of material at any one individual site and, cumulatively, not more than five cubic yards of material within a particular stream in a single year. Prospecting or other non-motorized activities may be conducted only within the bed or wet perimeter of the waterway and must not occur at any site where fish eggs are present.

(7) Fish Passage and Fish Screening Structures in Essential Indigenous Anadromous Salmonid Habitat (ESH). Less than 50 cubic yards of removal-fill for construction or maintenance of fish passage and fish screening structures that are constructed, operated or maintained under ORS 498.306, 498.316, 498.326 or 509.600 to 509.645. This exemption includes removal of material that inhibits fish passage or prevents fish screens from functioning properly.

(8) Change in Point of Diversion for Surface Water. Fill or removal for a change in the point of diversion to withdraw surface water for beneficial use is exempt if the change in the point of diversion is:

(a) Necessitated by a change in the location of the surface water; and

(b) Authorized by the Oregon Water Resources Department.

(9) Removal of Large Wood. Removal of large woody debris is exempt if:

(a) It poses a direct and demonstrable danger to livestock, human life or real property; or

(b) It poses a risk of harm to transportation facilities including, but not limited to, culverts, bridges and roads located near or within the beds or banks of any waters of this state; or

(d) The removal is no more than the amount necessary to reduce or eliminate the threat.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 4-2026, minor correction filed 08/07/2026, effective 08/07/2026
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 13-2019, minor correction filed 07/10/2019, effective 07/10/2019
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0534 Exemptions for Certain Voluntary Habitat Restoration Activities

(1) Definitions. For the purposes of this rule:

(a) “Habitat Restoration” means the return of an ecosystem from a disturbed or altered condition to a close approximation of its ecological condition prior to disturbance.

(b) “Voluntary” means activities undertaken by a person of their own free will, and not as a result of any legal requirement of the Removal-fill Law (ORS 196.600–196.990).

(2) Conditions of Exemption: Activities described in Sections (3) through (8) of this rule are exempt from permit requirements under the following conditions:

(a) Activities are not conducted in areas designated as State Scenic Waterways, unless listed as an exempt activity under ORS 390.835(5);

(b) In-water activities are conducted during the Oregon Department of Fish and Wildlife (ODFW) recommended in-water timing guidelines, unless otherwise approved in writing by ODFW;

(c) The in-water activities conform to ODFW fish passage requirements (ORS 509.580 through 509.910), unless otherwise approved in writing by ODFW;

(d) The activities will not convert waters of this state to uplands;

(e) The activities will cause no more than minimal adverse impact on waters of this state including impacts related to navigation, fishing, and public recreation;

(f) The activities will not cause the water to rise or be redirected in such a manner that it results in flooding or other damage to structures or substantial property off of the project site; and

(g) All necessary access permits, right of ways and local, state, and federal approvals have been obtained.

(3) Research and Fish Management in Essential Indigenous Anadromous Salmonid Habitat (ESH) is Exempt. A permit is not required for the construction and maintenance of scientific and research devices related to population management, watershed and habitat restoration, or species recovery, provided the activity does not exceed 50 cubic yards of removal-fill.

(4) Vegetative Planting. A permit is not required for planting native woody or herbaceous plants by hand or mechanized means. Ground alteration such as grading or contouring prior to planting is not covered by this exemption.

(5) Refuge Management. A permit is not required for habitat management activities located on a National Wildlife Refuge or State Wildlife Area that are consistent with an adopted refuge or wildlife area management plan. Fill or removal in waters of this state for non-habitat management activities such as roads and building is not covered by this exemption.

(6) Ditch and Drain Tile Removal. A permit is not required for the disruption or removal of subsurface drainage structures (e.g., drain tiles) and plugging or filling of drainage ditches in wetlands. Notification must be submitted on a form provided by the Department at least 30 calendar days prior to commencing the activity.

(7) Placement of Large Wood, Boulders and Spawning Gravels. A permit is not required for the placement of large wood, boulders and spawning gravels provided the material is placed consistent with the Guide to Placing Large Wood and Boulders (DSL/ODFW 2010). If the activity will exceed 50 cubic yards of removal-fill in waters of this state, or any amount in Essential Salmonid Habitat, notice of the activity must be provided to the Department. Notification must be submitted on a form provided by the Department at least 30 calendar days prior to commencing the activity.

(8) Other Activities Customarily Associated with Habitat Restoration in Essential Indigenous Anadromous Salmonid Habitat (ESH). A permit is not required for voluntary habitat restoration activities resulting in less than 50 cubic yards of removal-fill in waters of this state. This includes the disposal of material resulting from the restoration activities within the project area as long as it assists in accomplishing the objectives of the habitat restoration project. The activities must be consistent with the Oregon Aquatic Habitat Restoration and Enhancement Guide and utilize materials or structures that would naturally and/or historically occur at the project site. Notice of the activity must be provided, submitted on a form provided by the Department, at least 30 calendar days prior to commencing the activity.

(9) Removal of Trash, Garbage and Rubble. A permit is not required for the removal of any amount of inorganic trash, garbage and rubble (e.g., tires, metal, broken concrete, asphalt, foam, plastic) from waters of this state. The project must meet the following criteria:

(a) There are no adverse impacts to waters of this state or woody vegetation as a result of the project;

(b) There is no stockpiling of collected trash, garbage or rubble in waters of this state; and

History

Statutory/Other Authority: ORS 196.825 & 196.600-196. 692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10

Or. Admin. R. 141-085-0535 Exemptions Specific to Agricultural Activities

These exemptions apply in all waters of this state except State Scenic Waterways.

(1) Exemptions Do Not Apply to Nonfarm Uses. The exemptions under OAR 141-085-0535(2) and (3) do not apply to any fill or removal that involves changing an area of wetlands to a nonfarm use.

(2) Normal Farming and Ranching Activities on Converted Wetlands. “Converted Wetlands” are defined under OAR 141-085-0510. Exempt activities on converted wetlands include:

(a) Plowing;

(b) Grazing;

(d) Planting;

(e) Cultivating;

(f) Conventional crop rotation; and

(g) Harvesting.

(3) Certain Activities Conducted on Exclusive Farm Use (EFU) Zoned Land. The following activities on lands zoned for exclusive farm use as described in ORS 215.203 and designated in the city or county comprehensive plan are exempt:

(a) Drainage or maintenance of farm or stock ponds;

(b) Maintenance of existing farm roads in such a manner as to not significantly adversely affect wetlands or any other waters of this state; or

(4) Farm Uses on Certified Prior Converted Cropland. Any activity defined as a farm use in ORS 215.203 is exempt if the land is zoned for exclusive farm use pursuant to ORS 215.203, if the lands are converted wetlands that are also certified as prior converted cropland by the Natural Resources Conservation Service, as long as commercial agricultural production on the land has not been abandoned for five or more years.

(5) Federal Conservation Reserve Program. Reestablishment of crops under federal conservation reserve program provisions set forth in 16 U.S.C. 3831.

(6) Activities Customarily Associated with Agriculture in Essential Indigenous Anadromous Salmonid Habitat (ESH). These are activities, including maintenance activities, that are commonly and usually associated with the raising of livestock or the growing of crops in Oregon. Removal-fill covered by this exemption must not exceed 50 cubic yards of material.

(7) Agricultural Drainage Ditch Maintenance. Exempt maintenance of agricultural drainage ditches under OAR 141-085-0530(4) includes disposal of dredged material in a thin layer on converted wetlands, provided such disposal does not change wetland to upland. For the purposes of this exemption, “ditch” is defined in 141-085-0510(28).

(8) Push-Up Dams.

(a) Department-authorized push-up dams equal to or greater than 50 cubic yards can continue to be maintained indefinitely during the irrigation season and reconstructed each successive season provided the work is done in compliance with all original permit conditions and the Oregon Department of Fish and Wildlife fish passage statutes (ORS 509.580 through 509.910). In the event of conflicts with the original permit conditions, the most recent fish passage requirements will be controlling.

(b) Push-up dams that were built prior to September 13, 1967, are exempt from the Removal-Fill Law if they meet the following tests:

(A) Are reconstructed, serviceable and used within the past five years;

(B) Have the same effect as when first constructed (i.e., size and location); and

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0540 Types of Authorizations

One of the following types of authorizations is required for regulated activities in waters of this state.

(1) Individual Permits. IPs are issued for projects that do not qualify for other types of authorizations.

(2) General Authorizations. GAs are adopted by rule for a category of activities that have minimal impacts to waters of this state (OAR 141-089).

(3) General Permits.

(a) GPs are issued by rule on a statewide or geographic basis; or

(b) By order for an applicant or group of applicants to cover activities that are substantially similar in nature, are recurring or ongoing, and have predictable effects and outcomes.

(4) Emergency Authorizations. EAs are issued in circumstances that pose an immediate threat to public health, safety or substantial property including crop and farmland.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0545 Fees for Removal-Fill Applications

(1) Fees. The non-refundable fees for each application shall be a base application fee and a tier fee if applicable. Some applications may also require an annual fee, a variance fee, a modification fee, or a transfer fee. The fees are due as follows:

(a) All applicants, except applicants for an emergency authorization, must pay the base application fee at the time of application submission. Applications that do not include the base application fee will receive an incompleteness determination under OAR 141-085-0555(3). If the Department determines that the amount of the base application fee submitted at the time of application is incorrect, that information will be included with the incompleteness determination.

(b) The Department will notify all applicants, except applicants for an emergency authorization, of the appropriate preliminary tier fee at least 25 calendar days prior to the permit decision deadline. The Department may deny an application if the applicant does not pay the appropriate fee prior to the final permit decision deadline, unless the timeline is extended according to OAR 141-085-0560 subsection (b) or (c) for an individual permit or OAR 141-093-0115(2) for a general permit.

(c) The applicant shall pay other fees (i.e., variance fee, modification fee, transfer fee) within 30 calendar days of notice from the Department that fees are outstanding. The Department may deny the request if the applicant does not pay the appropriate fees within 30 calendar days of the notice that fees are outstanding.

(d) Base application fees and the tier fees for emergency authorizations shall be paid within 45 calendar days of receiving the authorization. Failure to pay the base application fee and tier fee shall be a basis to revoke or suspend the authorization under OAR 141-085-0780.

(e) There is no application fee or tier fee for notifications submitted to the department for Exemptions for Certain Voluntary Habitat Restoration Projects (OAR 141-085-0534). However, if the department determines that the project is not exempt, the appropriate application fee and tier fee are required for the project.

(2) Fee by Application Type. Fees for applications are based on the application type which is determined as follows:

(a) Application Type A is for projects that are entirely not for profit.

(b) Application Type B is for projects where any part of the project aims to generate profit.

(3) The following base application fee applies to all applications:

(a) Effective January 1, 2026 - $700, Application Type A and $2,100, Application Type B

(b) Effective January 1, 2027 - $761, Application Type A and $2,284, Application Type B

(b) Effective January 1, 2028 - $826, Application Type A and $2,477, Application Type B

(d) Effective January 1, 2029 - $893, Application Type A and $2,679, Application Type B

(e) Effective January 1, 2030 - $964, Application Type A and $2,892, Application Type B

(4) Permit Tiers. During review of an application or permit modification, the Department will identify the applicable permit tier for the project. Refer to OAR 141-085-0545 (PDF, incorporated by reference) for the project criteria for each tier.

(5) Tier Fees. The following are the project tier fees:

(a) Effective January 1, 2026:

(A) Tier 1 - $200, Application Type A and $600, Application Type B

(B) Tier 2 - $800, Application Type A and $2,400, Application Type B

(D) Tier 4 - $5,000, Application Type A and $15,000, Application Type B

(E) Tier 5 - $7,000, Application Type A and $21,000, Application Type B

(b) Effective January 1, 2027:

(A) Tier 1 - $341, Application Type A and $1,024, Application Type B

(B) Tier 2 - $971, Application Type A and $2,914, Application Type B

(D) Tier 4 - $5,644, Application Type A and $16,931, Application Type B

(E) Tier 5 - $7,744, Application Type A and $23,231, Application Type B

(A) Tier 1 - $490, Application Type A and $1,469, Application Type B

(B) Tier 2 - $1,151, Application Type A and $3,453, Application Type B

(D) Tier 4 - $6,320, Application Type A and $18,959, Application Type B

(E) Tier 5 - $8,525, Application Type A and $25,574, Application Type B

(d) Effective January 1, 2029:

(A) Tier 1 - $645, Application Type A and $1,936, Application Type B

(B) Tier 2 - $1,340, Application Type A and $4,020, Application Type B

(D) Tier 4 - $7,029, Application Type A and $21,088, Application Type B

(E) Tier 5 - $9,345, Application Type A and $28,034, Application Type B

(e) Effective January 1, 2030:

(A) Tier 1 - $809, Application Type A and $2,426, Application Type B

(B) Tier 2 - $1,538, Application Type A and $4,614, Application Type B

(D) Tier 4 - $7,775, Application Type A and $23,324, Application Type B

(E) Tier 5 - $10,206, Application Type A and $30,617, Application Type B

(6) For applications in Tier 5, if the department’s costs exceed the costs outlined in Section (5), an additional hourly rate will be charged. The Department will notify the applicant of the initial cost estimate and seek approval prior to initiating work. The hourly rate will be based on the actual costs at the time of service.

(7) Annual Fees. For individual permits, and general permits, that are renewed or valid for up to 5 years, an annual fee is assessed for each year that the permit is in effect. The annual fee is due 45 days prior to the anniversary date of issuance of the permit. The Department may assess the fee for multi-year permits or renewal as a one-time fee for up to five years. The one-time fee for multi-year permits or renewal will be calculated using the annual fee for each year the permit is active. If a future year’s fee has not been set yet, the most recent available fee will be used instead.

(a) Effective January 1, 2026 - $400 per year

(b) Effective January 1, 2027 - $446 per year

(d) Effective January 1, 2029 - $546 per year

(e) Effective January 1, 2030 - $599 per year

(8) Fees for Request for Modification of Permit Conditions or Transfer of an Authorization.

(a) The following fees apply to a request from the authorization holder to either modify authorization conditions or transfer an individual permit or general permit:

(A) Effective January 1, 2026 - $400

(B) Effective January 1, 2027 - $446

(D) Effective January 1, 2029 - $546

(E) Effective January 1, 2030 - $599

(b) Transfer or modification of an authorization will result in the Department re-evaluating the application type and permit tier. Any additional fee will be sent to the applicant in a notice that fees are outstanding before the transfer or modification is issued. The Department may deny a transfer or modification request if the applicant does not pay the appropriate fees within 120 calendar days of the notice that fees are outstanding.

(9) Variance Fees. The following fees apply for requests to deviate from the permitted In-Water Work Window:

(a) Effective January 1, 2026 - $100 per year

(b) Effective January 1, 2027 - $105 per year

(d) Effective January 1, 2029 - $116 per year

(e) Effective January 1, 2030 - $122 per year

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 4-2025, amend filed 08/20/2025, effective 01/01/2026
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0550 Application Requirements for Individual Permits

(1) Written Application Required . A person who is required to have an individual permit to remove material from the bed or banks, or fill any waters of this state, must file a written application with the Department for each individual project. A permit must be issued by the Department before performing any regulated removal-fill activity.

(2) Complete and Accurate Information Required . Failure to provide complete and accurate information in the application may be grounds for administrative closure of the application file or denial, suspension or revocation of the authorization.

(3) Fee Required for a Complete Application . For an application to be determined complete, the Department must have received the appropriate fee.

(4) Level of Detail Required May Vary . The applicant is responsible for providing sufficient detail in the application to enable the Department to render the necessary determinations and decisions. The level of documentation may vary depending on the degree of adverse impacts, the level of public interest and other factors that increase the complexity of the project.

(5) Required Information : A completed and signed application on current forms provided by the Department, including any maps, necessary photos and drawings, is required. The information must be entered in the appropriate blocks on the application form. The Department may require the applicant to submit any or all application materials electronically. The application must include all of the following:

(a) Applicant information including name, mailing address, phone number and e-mail address. When the applicant is a business entity, the business must be registered with the Oregon Secretary of State Corporate Division. The exact name of the business entity, as listed with Secretary of State Corporate Division, must be entered on the application.

(b) Landowner information including name and mailing address where any removal-fill activity is proposed, and if applicable, where permittee-responsible compensatory mitigation is proposed.

(A) For the construction of a new linear facility, the applicant must provide a complete list of landowner names and mailing addresses for all landowners whose land is identified in the permit application within the alignment of the new linear facility. Mailing labels must be provided when there are more than five landowners listed in the application.

(B) For the purpose of this rule, a condemner is the landowner when:

(i) If using state condemnation authority, the condemner has complied with ORS Chapter 35, filed an eminent domain action in court and deposited the condemner’s estimate of just compensation with the court for the use and benefit of the defendants, or it has a court’s order authorizing its possession of the land; or

(ii) If using federal authority, the condemner has complied with Federal Rules of Civil Procedure 71.1 and, if other than the United States, has a court’s order authorizing its possession of the land.

(c) Project site location information including Township, Range, Quarter-quarter Section and Tax Lot(s), latitude and longitude, street location if any, and location maps with site location indicated.

(d) The location of any off-site disposal or borrow sites, if these sites contain waters of this state.

(e) Project information including:

(A) Description of all removal-fill activities associated with the project;

(B) Demonstration of independent utility to include all phases, projects or elements of the proposed project which will require removal-fill activities;

(D) Area of removal and fill within jurisdictional areas expressed in acres to the nearest 0.01-acre for impacts greater than 0.01 of an acre or expressed in acres to the nearest 0.001-acre for impacts less than 0.01 of an acre; and

(E) Description of how the project will be accomplished including construction methods, site access and staging areas.

(f) A description of the project purpose and need for the removal or fill. All projects must have a defined purpose or purposes and the need for removal or fill activity to accomplish the project purpose must be documented. The project purpose statements and need for the removal or fill documentation must be specific enough to allow the Department to determine whether the applicant has considered a reasonable range of alternatives.

(g) Project plan views and cross-sectional views drawn to scale that clearly identify the jurisdictional boundaries of the waters of this state (e.g., wetland delineation or ordinary high water determination). Project details, such as work area footprint, impact area and approximate property boundaries must also be included so that the amount and extent of the impact to jurisdictional areas can be readily determined.

(h) A written analysis of potential changes that the project may make to the hydrologic characteristics of the waters of this state, and an explanation of measures taken to avoid or minimize any adverse impacts of those changes, such as:

(A) Impeding, restricting or increasing flows;

(B) Relocating or redirecting flow; and

(i) A description of the existing biological and physical characteristics of the water resources, along with the identification of the adverse impacts that will result from the project.

(j) A description of the navigation, fishing and public recreation uses, when the project is proposed on state-owned land.

(k) If the proposed activity involves wetland impacts, a wetland determination or delineation report that meets the requirements in OAR 141-090 must be submitted, unless otherwise approved in writing by the Department. A wetland delineation is usually required to determine the precise acreage of wetland impact and compensatory wetland mitigation requirements. Whenever possible, wetland determination and delineation reports should be submitted for review well in advance of the permit application. Although an approved wetland delineation report is not required for application completeness, a jurisdictional determination must be obtained prior to the permit decision.

(l) Functions and values assessments that meets the requirements in OAR 141-085-0685 when permanent impacts to waters of this state are proposed.

(m) Any information known by the applicant concerning the presence of any federal or state listed species.

(n) Any information known by the applicant concerning historical, cultural and archeological resources. Information may include but is not limited to a statement on the results of consultation with impacted tribal governments and/or the Oregon State Historic Preservation Office of the Oregon Parks and Recreation Department.

(o) An analysis of alternatives to derive the practicable alternative that has the least reasonably expected adverse impacts on waters of this state. The alternatives analysis must provide the Department all the underlying information to support its considerations enumerated in OAR 141-085-0565, such as:

(A) A description of alternative project sites and designs that would avoid impacts to waters of this state altogether, with an explanation of why each alternative is, or is not practicable, in light of the project purpose and need for the fill or removal;

(B) A description of alternative project sites and designs that would minimize adverse impacts to waters of this state with an explanation of why each alternative is, or is not practicable, in light of the project purpose and need;

(D) A description of methods to further reduce or eliminate the impacts over time through monitoring and implementation of corrective measures.

(p) If applicable, a complete compensatory mitigation plan that meets the requirements listed in OAR 141-085-0680 through 141-085-0715 to compensate for unavoidable permanent impacts to waters of this state and a complete rehabilitation plan if unavoidable temporary impacts to waters of this state are proposed.

(q) For each proposed removal-fill activity and physical mitigation site applied for in the application, a list of the names and addresses of the adjacent landowners, including those properties located across a street or stream from the proposed project.

(A) For a new linear facility, the applicant must provide a list of the names and mailing addresses of the adjacent landowners for the new linear facility.

(B) Mailing labels must be provided by the applicant, when there are more than five names and addresses of adjacent landowners listed.

(r) A signed local government land use affidavit.

(s) A signed Coastal Zone Certification statement, if the project is in the coastal zone.

(t) Applicant Signature. Signature of the applicant must be provided. If the application is on behalf of a business entity, a certificate of incumbency must be provided to certify that the individual signing the application is authorized to do so.

(u) Landowner Signature. If the applicant is not the landowner upon which the removal-fill activity (including mitigation) is to occur and does not hold an easement allowing the activity on that land, a written authorization from the owner of the land consenting to the application must be provided.

(A) Notwithstanding the requirement set forth under Subsection (u) above, a landowner signature is not required for applications for the construction and maintenance of linear facilities; and

(B) The condemner may sign as landowner when the requirements of OAR 141-085-0550(5)(b)(B) have been met.

(v) Mitigation Site Landowner Signature. If the applicant is not the owner of the land upon which the mitigation is to occur and does not hold an easement allowing the activity on that land, a written authorization from the owner of the land consenting to the application must be provided.

(w) Inventory and Evaluation if Related to Marine Resources or Removal-Fill in Oregon’s Territorial Sea. An application for a permit related to marine resources or removal-fill in the territorial sea must include all of the information required by the applicable Part of the Territorial Sea Plan. The resource inventory and effects evaluation must be provided as a stand-alone attachment to the applicant’s Joint Permit Application.

(6) Additional Requirements for Estuarine Fill . If the activity is proposed in an estuary for a non-water-dependent use, a complete application must also include a written statement that describes the following:

(a) The public use of the proposed project;

(b) The public need for the proposed project; and

(7) Additional Information as Requested . The Department may request additional information as necessary to make an informed decision on whether or not to issue the authorization.

(8) Waiver of Required Information. At its discretion, the Department may waive any of the information requirements listed in Section (5) of this rule for voluntary habitat restoration projects.

(9) Permit Application Modifications . A modification to a permit application may be submitted at any time prior to the permit decision. If the modification is received after the public review period, the Department may circulate the revised application again for public review. Modifications proposing significantly different or additional adverse impacts will generally be resubmitted for public review. The Department may set an expedited time frame for public review.

(10) Pre-Application Conference . An applicant may request the Department to hold a pre-application meeting. In considering whether to grant the request, the Department will consider the complexity of the project and the availability of Department staff.

History

Statutory/Other Authority: ORS 196.825, 196.600-196.665 & 196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 5-2017, amend filed 12/28/2017, effective 01/01/2018
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0555 Individual Removal-Fill Permit Application Review Process

(1) Completeness Review. Within 30 calendar days of the receipt of an application, the Department will review the application to determine if it is complete and adequately addresses the application requirements.

(2) Notification of Completeness Determination. Following the completeness review, the Department will inform the applicant of one of the following findings:

(a) The application is complete and will proceed to the public review process;

(b) The application is incomplete because of certain deficiencies; or

(3) Incomplete Application. If the Department determines that the application is incomplete or deficient, the Department will notify the applicant in writing and list the missing or deficient information. The application will be suspended awaiting revision. To initiate a new completeness review, the applicant must resubmit the entire amended application package for consideration, unless instructed by the Department to do otherwise. Submission of a new or amended application package starts a new 30-day initial review period.

(4) Timeframe for Resubmittal of Incomplete Applications. If a revised application is not resubmitted within 120 calendar days of an incompleteness determination, the Department may administratively close the application. If the Department closes the file for failure of the applicant to respond in a timely fashion to the request for additional information, the Department will retain the application fee. A subsequent application for the same or similar project will require submittal of a new application and payment of an application fee.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0560 Public Review Process for Individual Removal - Fill Permit Applications

(1) Circulation of the Application for Public Review . Once the application has been deemed complete and sufficient, the Department will provide notification of the availability of the application for review either by U.S. mail or electronically (e.g., facsimile, e-mail, posting on the Internet) to adjacent property owners, watershed councils, public interest groups, affected local government land use planning departments, state agencies, federal agencies and tribal governments in the geographic area affected by the permit. For construction and maintenance of linear facilities, landowners identified in the application will be notified by U.S. mail or electronically that the application is available for review. Upon request the Department may make a copy of the application available at the public library closest to the proposed project.

(2) Copies of the Application by Request . The Department will furnish to any member of the public, upon written request and at the expense of the member of the public, a printed copy of any application.

(3) Submitting Public Comments . To be considered by the Department and to become part of the permit record, all comments must be sent to the destination specified in the notification or submitted through the Web site. All recommendations and comments regarding the application must be submitted in writing to the Department within the period established by the Department, but not more than 30 calendar days from the date of the notice, except as noted under Subsection (a), below:

(a) The Department will grant an extension of up to 75 calendar days to the Department of Environmental Quality if the application requires Section 401 certification under the Federal Water Pollution Control Act (P.L. 92-500) as amended.

(b) If a commenter fails to comment on the application within the comment period, the Department will assume the commenter has no objection to the project.

(4) Department Review of Public Comments and Public Hearing. The Department will review and consider substantive comments received during the public review period, and may conduct any necessary investigations to develop a factual basis for a permit decision. Necessary investigations may include but are not limited to the following:

(a) The Department may, as a result of the public review process or the Department's investigations, request that the applicant submit supplemental information and answer additional questions prior to the Department making the permit decision.

(b) The Department may schedule a permit review coordination meeting with interested agencies or groups and the applicant to provide the applicant an opportunity to explain the project and to resolve issues; and

(c) At the Department's discretion, the Department may hold a public hearing to gather necessary information that may not otherwise be available to make a decision.

(5) Applicant Response to Comments .

(a) Comments resulting from the public review process will be forwarded to the applicant after the comment period deadline.

(b) The applicant may, at his or her discretion, respond to public and agency comments. The response may be in the form of additional information to support the application and/or revisions to the project that address the comments.

(c) If no response is received from the applicant by the date specified by the Department, the Department will presume that the applicant does not intend to provide additional supporting information or revisions to the application.

(6) Final Review

(a) Unless the timeline is extended as provided below in Subsection (b) or (c), the Department will make a final permit decision within 90 calendar days after determining an application is complete;

(b) The permit decision deadline may be extended beyond 90 calendar days when the applicant and the Department agree to an extension.

(c) The permit decision deadline may be extended beyond 90 calendar days when the director determines that an extension is necessary to coordinate the issuance of a proprietary authorization decision for an ocean renewable energy facility and a removal-fill permit decision.

(d) If the Department does not approve an extension, the Department will make a final permit decision based upon the record as it existed within:

(A) The original 90-day time period; or

(B) The extension period approved immediately prior to the applicant’s most recent request for an extension.

(7) Application Withdrawal. An applicant may withdraw an application at any time prior to the permit decision. In the event the applicant fails to respond to the Department's requests for information or otherwise fails to reasonably proceed with the application process, the Department may administratively withdraw the application with at least 30 calendar days’ notice to the applicant. There will be no refund of the application fee in either case.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & ORS 196.800 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 5-2017, amend filed 12/28/2017, effective 01/01/2018
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0565 Department Determinations and Considerations in Evaluating Individual Permit Applications

(1) Departmental Final Review . The Department will evaluate the information provided in the application, conduct its own investigation, and consider the comments submitted during the public review process to determine whether or not to issue an individual removal-fill permit.

(2) Effective Date of Review Standards . The Department may consider only standards and criteria in effect on the date the Department receives the complete application or renewal request.

(3) Department Determinations . The Department will issue a permit if it determines the project described in the application:

(a) Has independent utility;

(b) Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 to 196.990; and

(c) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation, when the project is on state-owned lands.

(4) Department Considerations . In determining whether to issue a permit, the Department will consider all of the following:

(a) The public need for the proposed fill or removal and the social, economic or other public benefits likely to result from the proposed fill or removal. When the applicant for a permit is a public body, the Department may accept and rely upon the public body’s findings as to local public need and local public benefit;

(b) The economic cost to the public if the proposed fill or removal is not accomplished;

(d) The availability of alternative sites for the proposed fill or removal;

(e) Whether the proposed fill or removal conforms to sound policies of conservation and would not interfere with public health and safety;

(f) Whether the proposed fill or removal is in conformance with existing public uses of the waters and with uses designated for adjacent land in an acknowledged comprehensive plan and land use regulations;

(g) Whether the proposed fill or removal is compatible with the acknowledged comprehensive plan and land use regulations for the area where the proposed fill or removal is to take place or can be conditioned on a future local approval to meet this criterion;

(h) Whether the proposed fill or removal is for stream bank protection; and

(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill or removal in the manner set forth in ORS 196.800.

(5) Alternatives Analysis . The Department will issue a permit only upon the Department's determination that a fill or removal project is consistent with the protection, conservation and best use of the water resources of this state and would not unreasonably interfere with the preservation of the use of the waters of this state for navigation, fishing and public recreation. The Department will analyze a proposed project using the criteria set forth in the determinations and considerations in Sections (3) and (4) above (OAR 141-085-0565). The applicant bears the burden of providing the Department with all information necessary to make this determination.

(6) Fills in an Estuary for Non-Water Dependent Use . A “substantial fill” in an estuary is any amount of fill regulated by the Department. No authorizations will be issued for a substantial fill in an estuary for a non-water dependent use unless all of the following apply:

(a) The fill is for a public use;

(b) The fill satisfies a public need that outweighs the harm, if any, to navigation, fisheries and recreation; and

(7) Written Findings . In the following cases, the Department will prepare written findings to document an individual removal-fill permit decision:

(a) Permit denial;

(b) Permanent fill of two acres or more in wetlands;

(d) Removal from estuaries of more than 10,000 cubic yards of material (except for maintenance dredging);

(e) Placement of greater than 2,500 cubic yards of riprap in coastal streams or estuaries;

(f) Removal-fill in the Oregon Territorial Sea in accordance with Statewide Planning Goal 19-Ocean Resources; and

(g) Any permit decision that is contrary to the final decision recommendation of a state agency.

(8) Marine Reserves and Marine Protected Areas . The Department will only authorize a removal-fill activity within an area designated by the State Land Board as a marine reserve or a marine protected area if the removal-fill activity is necessary to study, monitor, evaluate, enforce or protect or otherwise further the studying, monitoring, enforcement and protection of the reserve or marine protected area.

(9) Ocean Renewable Energy Facilities. The Department will only authorize a removal-fill activity for an ocean renewable energy facility that complies with the criteria described in applicable parts of the Territorial Sea Plan.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & ORS 196.795 - 196.990
DSL 5-2017, amend filed 12/28/2017, effective 01/01/2018
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0575 Permit Appeals

(1) Applicant Appeal Within 21 Calendar Days. An applicant may request a contested case proceeding if they object to an application incompleteness determination, permit decision, or permit condition imposed by the Department. The request must be in writing and must be received by the Department within 21 calendar days of the decision.

(2) Other Person Appeal Within 21 Calendar Days. Any person who is aggrieved or adversely affected by the Department's final decision concerning an individual permit or a condition therein may request a contested case proceeding. The request must be in writing and must be received by the Department within 21 calendar days of the decision.

(3) Standing in Contested Case. For a person other than the applicant to have standing to request a contested case, the person must be either "adversely affected" or "aggrieved”:

(a) To be "adversely affected" by the Department's individual removal-fill permit decision, the person must have a legally protected interest that would be harmed, degraded, or destroyed by the authorized project.

(b) To be "aggrieved" by the Department's individual removal-fill permit decision the person must have participated in the Department's review of the project application by submitting timely written comments stating a position on the merits of the proposed removal-fill to the Department.

(4) Contents of the Request. The Department has determined that due to the complexity of removal-fill permitting, a general denial of the matters alleged in the request for a contested case proceeding does not provide sufficient information for a fair and efficient contested case and a more specific request is warranted. All requests for a contested case proceeding under this section shall include a specific list of issues for the contested case proceeding. The requester may amend their request to include additional issues or clarify existing issues within 15 days of the date that the case is referred to the Office of Administrative Hearings.

(5) Contested Case Proceeding. If the written request for a contested case proceeding is timely, clearly identifies at least one specific issue, and was made by an eligible person, the matter will be referred to the Office of Administrative Hearings. The contested case will be conducted as follows:

(a) The hearing will be conducted as a contested case pursuant to OAR 137-003-0501 through 137-003-0690 and this rule;

(b) The permit holder and any other persons that are adversely affected or aggrieved that have filed a timely written request for a contested case proceeding will be parties to the proceeding; and

(c) An Administrative Law Judge will conduct a contested case proceeding only on the specific issues clearly identified in the request for contested case proceeding as provided in section (4) of this rule or in the referral from the Department.

(6) Review of Jurisdictional Determinations. Jurisdictional determinations of the existence, or boundaries, of the waters of this state on a parcel of property, issued more than 60 calendar days before a request for a contested case proceeding are final. Jurisdictional determinations are judicially cognizable facts of which the Department may take official notice under ORS 183.450(3) in removal-fill contested cases. Challenges to jurisdictional determinations are only permitted under the process set out in OAR 141-090.

(7) The Proposed Order. The Administrative Law Judge will issue a proposed order containing findings of fact and conclusions of law. If the request for a contested case proceeding was filed by a person other than the applicant, with a legally protected interest that is adversely affected by the issuance of the permit, the Administrative Law Judge shall issue a proposed order within 20 business days of the evidentiary hearing. Other proposed orders should be issued within 90 calendar days of a ruling that resolves all issues of the evidentiary hearing. As required by ORS 183.460, the proposed order shall provide an opportunity to file written exceptions with the Department.

(8) Amended Proposed Order. The Department may issue an amended proposed order. Any amended proposed order shall provide an opportunity to file written exceptions with the Department.

(9) The Final Order. The Department will consider the record, any exceptions, and enter a final order containing findings of fact and conclusions of law. The final order will rescind, affirm or modify the permit or proposed order. If the request for a contested case proceeding was filed by a person other than the applicant, with a legally protected interest that is adversely affected by the issuance of the permit, the Department shall issue the final order within 45 business days after the evidentiary hearing, if any. All other final orders should be issued within 90 calendar days of the proposed order or amended proposed order.

(10) Pre-Hearing Suspension of Permits. A permit granted by the Department may be suspended by the Department during the pendency of the contested case proceeding. Petitions for suspension must be made to the Department and will be either granted or denied by the Department. The permit will not be suspended unless the person aggrieved or adversely affected by issuance of the permit makes a showing before the Department by clear and convincing evidence that commencement or continuation of the fill would cause irremediable damage and would be inconsistent with ORS 196.800 through 196.990.

(11) Issuance or Denial of a Permit. Interested persons who request notification in writing of the Department's decision on a permit will be notified at the time of issuance or denial. The Department's failure to notify an interested person will not extend any timeframe for a request for a contested case proceeding.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 5-2024, minor correction filed 12/10/2024, effective 12/10/2024
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0580 Discovery in Contested Cases

In contested cases conducted on matters relating to these rules, the Department delegates to the hearing officer the authority to rule on any issues relating to discovery, except that depositions will only be awarded if it is likely that a witness will not be available at a hearing.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0585 Permit Conditions, Permit Expiration Dates and Permit Transfer

(1) Applicable Permit Conditions. If the Department approves the permit, it will impose applicable conditions to eliminate or reduce the reasonably expected adverse impacts of project development to waters of this state.

(2) Applicant Acceptance of Permit Conditions. Once an authorization holder initiates the removal fill activity authorized by a permit, it is understood that the permit holder accepts the conditions contained within the permit.

(3) Enforceability of Permit Conditions. Authorizations may include conditions, including compensatory mitigation and monitoring conditions that impose obligations beyond the expiration date of the removal/fill activity. All such conditions are enforceable until such obligations are satisfied.

(4) Conflicts Between the Application and Permit Conditions. The application, including all plans and operating specification, becomes an enforceable part of the removal-fill authorization. In the event there is a conflict between information contained in the application and conditions in the removal-fill authorization, the authorization conditions prevail.

(5) Permit Expiration Date. The Department may issue an individual removal-fill authorization for up to five years for removal-fill activities that occur on a continuing basis or will take more than one year to complete.

(6) Limits on Terms for Commercial Gravel Operations. For commercial gravel removal, the Department will only issue a multi-year permit when it determines that:

(a) There is sufficient aggregate resource or annual recharge to allow the proposed volumes to be removed; and

(b) The authorization holder has, for at least one year preceding the pending renewal, conducted removal in compliance with permit conditions.

(7) Modification of Permit Conditions. Modifications of permit conditions may be either requested by the authorization holder or initiated by the Department.

(a) A modification request from the authorization holder must be submitted in writing. Based on the scope of the modification request, the Department may:

(A) Modify permit conditions to address changes in operating conditions or changes to the project; or

(B) Deny the modification request and request a new application.

(b) The Department may modify permit conditions to address new standards or new information related to water resource impacts in effect at the time of the permit renewal request or on the anniversary date of issuance for multiyear permits issued in accordance with OAR 141-085-0545(8).

(8) Transfer of Permit Responsibility. Authorizations are issued to the applicant and are not automatically transferred through property transactions. The applicant is responsible for complying with the conditions of the permit, unless the permit is officially transferred to a different person or party. A transfer form must be submitted to the Department for review and approval. If the transferee is a business entity, the business must be registered with the Oregon Secretary of State Corporate Division. The exact name of the business entity, as listed with Secretary of State Corporate Division, must be entered on the transfer form. The transfer form must be accompanied by a signed certificate of incumbency. Transfers are approved through one of the following means:

(a) If the authorization has not expired, the Department will issue a modified permit to the transferee, who will then be responsible for complying with all of the conditions in the permit. If financial security was required for compensatory mitigation, a new financial security instrument, naming the transferee as the obligor must be provided to the Department before the transfer; or

(b) If the authorization has expired, but there is a pending mitigation obligation, the mitigation obligation will be transferred to the transferee through an acknowledgement letter. If financial security was required for the pending mitigation obligation, a new financial security instrument must be provided, naming the transferee as the obligor prior to the transfer.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0590 Renewal and Extension of Individual Removal-Fill Permits

(1) Renewal of Individual Permits. Individual permits may be renewed if the permit holder anticipates that the project within waters of this state will not be completed by the permit expiration date.

(2) Renewal Notice. At least 90 calendar days prior to the expiration of a valid removal-fill permit, the Department will send a renewal notice to the permit holder. The renewal notice will inform the permit holder of the expiration date of the permit and offer an opportunity to renew the permit.

(3) Request for Renewal. In order to renew the permit, the permit holder must respond with a request to renew the permit. The request for renewal must:

(a) Include a short statement of the status of the project, including any compensatory mitigation requirements;

(b) Include the base fee;

(d) If requested by the Department, be accompanied by an updated application. Updated applications may be required for permits that have been in effect for five years, and at every five-year increment thereafter. Updated applications must be provided on current forms provided by the Department.

(4) Processing the Renewal Request. Upon receipt of a request for renewal, the Department:

(a) Must review the request pursuant to the standards contained in the applicable rules in effect at the time of the request; and

(b) May provide public notice of the renewal in accordance with the provisions in OAR 141-085-0560.

(5) Department’s Decision. Upon review of the renewal request, along with any updated information or public comments, the Department will either:

(a) Renew the permit, with or without modified conditions;

(b) Extend the permit for an additional time period; or

(6) Extension of a Permit Expiration Date. At the discretion of the Department, a permit expiration date may be extended:

(a) If more time is needed to resolve issues that arise during the renewal process; or

(b) If the applicant failed to respond to the renewal request in a timely manner.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0595 Permit Requirements and Interagency Coordination for Department of Environmental Quality Approved Remedial Action, Corrections Facilities, Solid Waste Land Fills and Energy Facilities

(1) DEQ Remedial Action Waiver. Pursuant to ORS 465.315, no removal-fill authorization is required for remedial action conducted on a site selected or approved by the Department of Environmental Quality. The responsible party must notify the Department of its intended action, pay applicable fees, and comply with the substantive requirements provided by the Department. Failure to comply with the substantive requirements may result in enforcement action.

(2) Application Process Requirements for Specific Siting Entities. Upon submission by the applicant of a complete application and payment of the proper fees, the Department will issue the permits authorized by the authorized siting entity listed below, subject to the conditions set forth by the siting entity (including conditions supplied to the siting authority by the Department). The Department will continue to exercise enforcement authority over a permit issued pursuant to this section. These siting entities are:

(a) The Corrections Facilities Siting Authority, pursuant to ORS 421.628, relating to siting corrections facilities;

(b) The Environmental Quality Commission, pursuant to ORS 459.047, relating to siting solid waste landfills;

(d) The Economic Recovery Review Council, pursuant to Oregon Laws 2011, chapter 564, related to the siting of industrial development projects of state significance.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0665 Expedited Process for Industrial or Traded Sector Sites

(1) Department Assistance with Industrial Siting. The Department will participate in planning and authorizing removal-fill within waters of this state for certain industrial or traded sector sites identified by the Oregon Business Development Department (OBDD). The Department will provide assistance to the maximum extent feasible, taking into account budget and staffing constraints.

(2) Site Designation Process. The Director may, upon the request of OBDD, designate a site for expedited planning and processing. The project proponent or sponsor will have authority to authorize the Department or its agents physical access to the site.

(3) Department-Appointed Project Leader. The Director will assign a project leader from the Department to work with the OBDD, other applicable agencies and the project sponsor. Such work will include, but is not limited to:

(a) Expedited jurisdictional determinations by the Department;

(b) Technical assistance in the preparation of jurisdictional delineation and functional assessment reports, impact avoidance and minimization strategies, alternatives analyses and compensatory mitigation plans;

(c) Assistance with other permit application documents necessary to issue an authorization or to avoid the need to obtain an authorization by planning the project in such a way so as to avoid impacts to waters of this state;

(d) Expedited review of removal-fill applications and prompt permit decision as long as doing so will not result in the Department missing statutory deadlines for other permits; and/or

(e) Assistance with the early identification and resolution of issues raised by other agencies and the public.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0676 Emergency Authorizations

(1) Eligibility and Applicability. The Department may issue, orally or in writing, an emergency authorization to a person for the removal of material from the beds or banks or filling of any waters of this state in an emergency, for the purpose of making repairs or for the purpose of preventing irreparable harm, injury or damage to persons or property. In order to qualify for an emergency authorization the Department must determine that:

(a) The emergency poses a direct threat to substantial property, including but not limited to a dwelling, transportation structure, farm or cropland;

(b) Prompt action is required to reduce or eliminate the threat;

(d) The proposed project is the minimal amount necessary to reduce or eliminate the threat and minimizes, to the extent practicable, adverse impacts to waters of this state.

(2) Information Requirements. Any person requesting an emergency authorization may apply verbally or in writing. Written applications may be sent via facsimile, e-mail or U.S. mail. Applications for an emergency authorization must include:

(a) The applicant planning and carrying out the activity;

(b) The location of the project;

(c) The nature of the emergency (specifically, the nature of the threat to public health, public safety or property and the immediacy of the threat and need to act promptly);

(d) A description of the proposed work, including the approximate volume of material to be removed and/or filled, how the work will be accomplished and the schedule for doing the work;

(e) The date and approximate time when the event that caused the emergency took place;

(f) A statement as to whether the emergency action is intended as a temporary or permanent response measure; and

(g) Additional information, as requested from the Department.

(3) Authorized Representative. The Department may authorize a person, including personnel from public agencies, to act as a representative of the Department to conduct an on-site evaluation of the planned activity and make recommendations as to whether or not the application should be approved as requested, approved with conditions, denied or processed as an individual removal-fill authorization application.

(4) Department Decision. Based on review of all the available information, the Department may take the following action(s):

(a) Approve the emergency authorization, either verbally or in writing; or

(b) Deny issuance of the emergency authorization. If a request for an emergency authorization is denied, the applicant may submit an application for an individual removal-fill permit, general permit or general authorization, as appropriate for the scope of the project.

(5) Written Authorization Needed to Confirm Verbal Authorization. If an emergency authorization is issued verbally, the authorization will be confirmed in writing by the Department within five calendar days confirming the issuance and setting forth the conditions of operation.

(6) Term. The term of the emergency authorization will be limited to the time necessary to complete the planned project and will be specifically stated in the authorization.

(7) Conditions of Emergency Authorizations. An emergency authorization may contain conditions to minimize the reasonably expected adverse impacts of the activity to waters of this state. Conditions may include:

(a) Compensatory mitigation or compensatory wetland mitigation;

(b) A requirement to revise the project and apply for a removal-fill permit after the emergency situation has subsided;

(d) Any other condition necessary to minimize reasonably expected adverse impacts on waters of this state.

History

Statutory/Other Authority: ORS 196.825 & 196.600 -196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
Renumbered from 141-085-0570 by DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0680 Compensatory Mitigation (CM); Applicability and Principal Objectives

(1) Applicability. OAR 141-085-0680 through 141-085-0755 applies to removal-fill that occurs within waters of this state and applies to all forms of compensatory mitigation (i.e., mitigation bank, in-lieu fee mitigation, advance mitigation, permittee responsible mitigation, and payment in-lieu mitigation). The Department may establish CM requirements other than those explicitly set forth in OAR 141-085-0680 through 141-085-0755 within areas covered by an approved Wetland Conservation Plan or Advance Aquatic Resource Plan.

(2) Principal Objectives for CM. For projects where impacts to waters of this state cannot be avoided, CM will be required to compensate for the reasonably expected adverse impacts in fulfillment of the following principal objectives.

(a) The principal objectives of CM are to:

(A) Replace functions and values lost at the removal-fill site;

(B) Provide local replacement for locally important functions and values, where appropriate;

(C) Enhance, restore, create or preserve waters of this state that are self-sustaining and minimize long-term maintenance needs;

(D) Ensure the siting of CM in ecologically suitable locations considering: local watershed needs and priorities; appropriate landscape position for the waters types, functions and values sought; connectivity to other habitats and protected resources; and the absence of contaminants or conflicting adjacent land uses or development trends that would compromise functions and values; and

(E) Minimize temporal loss of waters of this state and their functions and values.

(b) Applicants must demonstrate how the selected method of CM (i.e., mitigation bank, in-lieu fee mitigation, advance mitigation, permittee-responsible mitigation and payment in-lieu mitigation) addresses the principal objectives.

(3) General Requirements.

(a) Replacement for locally important functions and values may be required.

(b) Projects that involve 0.20 acres or less of permanent wetland impact may use mitigation banks, in-lieu fee, or payment in-lieu mitigation without addressing the principal objectives set forth in Section (2) of this rule, except when impacts are to Aquatic Resources of Special Concern.

(c) Payment in-lieu mitigation may not be used if appropriate mitigation bank or in-lieu fee credits are available on the day that the public review period closes.

(d) CM earthwork must be completed within the same construction season as the authorized removal-fill project. The Department may approve non-concurrent CM if the applicant clearly demonstrates, in writing, the reason for the delay or that there is benefit to the aquatic resources in doing so.

(e) CM involving the conversion of a water of this state to a different type, HGM class or Cowardin class may not be approved when the existing aquatic resource is in good condition, is an Aquatic Resource of Special Concern, provides locally important functions or values, or supports listed species or a rare plant community or communities.

(f) CM projects must not degrade areas with existing high natural resource values (e.g., forested uplands).

(g) CM hydrology must be self-sustaining and must not rely on features or facilities that require frequent and regular long-term maintenance and management. For example, permanent water control structures may be acceptable, whereas pumping from a groundwater well to provide adequate hydrologic support is not acceptable.

(h) Multiple Purpose CM. CM sites may fulfill multiple purposes including storm water retention or detention, provided:

(A) All other CM requirements are met;

(B) No alteration or management is required to maintain the functionality of the stormwater facility that would degrade the CM functions and values;

(C) The stormwater entering the CM site has been pretreated to the level necessary to assure that state water quality standards and criteria are met in the mitigation area;

(D) Construction of storm water facilities in existing wetlands meets the criteria for enhancement in OAR 141-085-0694 (1);

(E) Construction of the CM site will not adversely affect adjacent waters of this state;

(F) Construction of the CM site will not significantly change pre-development hydrologic conditions, significantly increase peak flows or significantly change the velocity to receiving streams; and

(G) Stormwater discharges to existing or CM wetlands will not result in hydrologic conditions that impair vegetation or substrate characteristics necessary to support wetland functions.

(i) CM for Linear Projects. The Department will review and approve CM for linear projects (e.g., roads or utility lines) that cross multiple waters of this state or that may occur in multiple watersheds on a case-by-case basis and may establish other CM requirements than those explicitly set forth in these rules.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 4-2019, minor correction filed 04/10/2019, effective 04/10/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0685 Functions and Values Assessment

(1) Purpose. The purpose of the functions and values assessment is to document those functions and values anticipated to be lost as a result of the project and help ensure that the proposed CM will replace those functions and values. Uplands are assumed to have zero functions and values for purposes of these rules.

(2) Functions and Values Assessment Requirements. More than one assessment may be required to document the following:

(a) Existing functions and values at the proposed project site;

(b) Functions and values reasonably expected after implementation of the proposed project;

(d) Functions and values reasonably expected to be provided at the proposed CM site after implementation of the CM project; and

(e) The projected net gain or loss of functions and values as a result of the CM project compared to the reasonably expected adverse impacts as a result of the project.

(3) Exceptions. A functions and values assessment is not required for the proposed CM site if:

(a) CM is proposed to be fulfilled by purchase of legacy credits, in-lieu fee mitigation credits not associated with a Department-approved project, or payment in-lieu mitigation.

(b) The project is limited to 0.20 acres or less of permanent wetland impact and CM is proposed to be fulfilled by purchase of bank credits, or in-lieu fee mitigation credits associated with a Department-approved project.

(4) Methods. The same functions and values assessment method must be used at the proposed project site and the proposed CM site, and to assess the sites as they currently exist and are predicted to exist if the proposed project is implemented. Functions and values assessment methods and requirements are as follows:(a)

(a) All applications for tidal waters, or wetland types that are an Aquatic Resources of Special Concern, and applications for other wetland impacts of greater than 0.20 acres, must include a functions and values assessment using the Oregon Rapid Wetland Assessment Protocol (ORWAP) or the Vernal Pool Function Assessment Method for the Agate Desert, if applicable.

(b) Applications received after July 1, 2019, for any impact amount in intermittent streams, perennial streams, or Aquatic Resources of Special Concern associated with intermittent streams or perennial streams, must include a functions and values assessment using the Stream Function Assessment Method (SFAM), if applicable.

(c) For non-tidal wetland impacts involving impacts of 0.20 acres or less, ORWAP is the preferred method, but best professional judgment may be used to assess wetland functions and values.

(d) For impacts to jurisdictional ditches, SFAM is the preferred method, but best professional judgment may be used to assess functions and values.

(e) Applications for impacts to waters of the state where ORWAP, the Vernal Pool Function Assessment Method for the Agate Desert, or SFAM are not applicable or not otherwise required may use best professional judgment to assess functions and values.

(f) If best professional judgment is used:

(A) Group-level functions and values to be assessed must include, but are not limited to, those outlined in ORWAP or SFAM, as appropriate.

(B) Conclusions must include a rating (i.e. low, moderate, or higher) for each of the group-level functions and values, and a written discussion of the basis of that rating. For example, if the water quality function is rated "low,” a detailed rationale based upon direct measurement or observation of indicators of water quality function must be discussed.

(g) The Oregon Freshwater Wetland Assessment Methodology will not satisfy the requirements of OAR 141-085-0685.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 – 196.692 & ORS 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 5-2019, minor correction filed 04/10/2019, effective 04/10/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0690 Eligibility Requirements for CM

(1) CM at an off-site location will be located within the 4th field Hydrologic Unit Code (HUC) in which the removal-fill site is located, or within a service area of a bank or in-lieu fee covering the removal-fill site.

(2) Impacts to tidal waters must be replaced in the same estuary unless the Director determines that it is ecologically or environmentally preferable to exceed this limitation according to OAR 141-085-0690(4).

(3) Replacement by Type and Functions and Values. The CM project must have the capability to replace:

(a) Wetland or tidal water type(s) impacted by the project, as classified per Cowardin system and class (e.g., palustrine forested) and by HGM class/subclass(es) (e.g., riverine impounding);

(b) Stream type(s) impacted by the project, meaning having the same:

(A) Flow permanence (intermittent or perennial);

(B) Stream size class (small, medium, or large), as set forth by Oregon Department of Forestry in OAR 629-635-0200 Sections (13) and (14); and

(c) The group-level functions and values of the impacted water of this state, as outlined in ORWAP or SFAM, as appropriate, unless CM is proposed to be fulfilled by purchase of legacy credits.

(4) Exceptions. The Department may approve exceptions to replacement by type and functions and values if the alternative CM is ecologically or environmentally preferable.

(a) CM for impacts to an Aquatic Resource of Special Concern (ARSC) must involve the ARSC type being impacted. Replacement by type and functions and values is not required.

(b) To meet an exception to replacement by type and function and values, the applicant must demonstrate, in writing, that the alternative CM:

(A) Addresses a watershed priority, as identified in a planning or assessment document, report, or other data that considers one or more of the following:

(i) How specific types and locations of projects will provide identified priority aquatic function for the watershed;

(ii) Habitat requirements of important aquatic-resource dependent species;

(iii) Loss or conversion trends of aquatic resource habitats;

(iv) Sources of watershed impairment;

(v) Current development trends that adversely affect aquatic resources or necessitate the presence of aquatic resource functions; or

(vi) Requirements of other regulatory and non-regulatory programs that affect the watershed.

(B) Provides, or will provide post-construction, a high level of the functions and values that are relevant to the targeted priority.

(A) A description of the planning or assessment documents, reports, or data upon which their CM is based. The description will include when, how, and by whom the analysis was completed, the geographic area covered by the analysis, and a summary of any public and private stakeholder involvement in the analysis including any coordination with federal, state, tribal, and local aquatic resource management and regulatory staff;

(B) A description of the specific ecologically or environmentally preferable priority listed above that is targeted in the mitigation plan and the reasoning behind it being considered a priority.The description will include a summary of the historic loss, causes for the loss, and ongoing threats; and

(C) A description of how the location, type, functions and values provided by the proposed compensatory mitigation site address the targeted priority.The description will include an appropriate level of field documentation, including a function and value assessment, data collected at the site, mitigation drawings and specifications, and any letters from consultation with local agency representatives (e.g., ODFW, DEQ)

History

Statutory/Other Authority: ORS 196.600-196.692 & ORS 196.825
Statutes/Other Implemented: ORS 196.600-196.692 & ORS 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 6-2019, minor correction filed 04/10/2019, effective 04/10/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0692 Mitigation Accounting

(1) The purpose of mitigation accounting is to:

(a) Ensure that the total area of the state’s wetland and tidal waters resource base is maintained;

(b) Replace functions and values, including those that may be size dependent;

(d) Encourage long-term sustainability of CM projects.

(2) Ratios will not be used as the sole basis for demonstrating functional replacement.

(3) Minimum Requirements. Except as otherwise provided in this section, the following minimum ratios must be used in the development of CM plans:

(a) One acre of restored or created wetland or tidal waters for one acre of impacted wetland or tidal waters (1:1);

(b) One credit from a bank, in-lieu fee, or advance mitigation project for one acre of impacted wetland or tidal waters (1:1);

(d) There is no established ratio for CWM using preservation, or for CNWM. Minimum requirements will be determined on a case-by-case basis by the Department.

(4) Adjustments to the Minimum Requirements. The amount of CM will increase based on the following factors but will not reduce the amount of mitigation below the minimum requirements:

(a) Degree of specific function and value replacement. Adjustments will be based on the specific functions and values outlined in ORWAP, SFAM, or the Vernal Pool Function Assessment Method for the Agate Desert, if applicable.

(A) Differences between the specific functions and values that will be lost at the impact site and the functions and values expected to be produced by the CM project will increase the amount of CM required up to fifty percent.

(B) A CM site exceeding, or predicted to exceed, at least eighty percent of the specific functions that will be lost at the proposed impact site will reduce the amount of CM required by twenty percent.

(b) Functional temporal loss. Characteristics (e.g., vegetation or soils) that are expected to take time to develop at the CM project and result in temporal loss of functions or values will increase the amount of CM required. This adjustment will not exceed one hundred percent of the minimum requirements and will be limited to the characteristic that has the longest maturity time (i.e., characteristics are not additive).

(c) Strengthened administrative protection and long-term stewardship. Provisions for the CM site that are above and beyond the minimum requirements of the Department will reduce the amount of CM required up to twenty percent. Strengthened long-term stewardship must include appropriate funding to implement an approved stewardship plan. Minimum administrative requirements are public ownership with a management plan, or a deed restriction.

(d) Impacts to CM Sites. The Department may double the minimum requirements for project development affecting existing CM sites.

(e) Unauthorized Removal-Fill. The Department may increase the minimum requirements when mitigation is proposed to compensate for an unauthorized removal-fill activity.

(f) Non-concurrent CM. The Department may increase the minimum requirements when mitigation will not be implemented in the same construction season as the authorized impact.

(5) Exceptions to Adjustments to the Minimum Requirements.

(a) Permittee-responsible mitigation proposed for projects that involve 0.20 acres or less of permanent wetland impact are not subject to an adjustment based on differences between the specific functions and values lost at the impact site and the specific functions and values expected to be produced by the CM project; all other adjustments may apply.

(b) Projects that involve 0.2 acres or less of permanent wetland impact that use mitigation banks, in-lieu fee mitigation, or payment in-lieu mitigation are not subject to the adjustments in 141-085-0692(4)(a) to 141-085-0692(4)(c).

(6) Buffer Areas. Credit will be granted for required buffers at an amount determined by the Department. Such buffers will be subject to appropriate administrative site protection pursuant to OAR 141-085-0695.

History

Statutory/Other Authority: ORS 196.600-196.692 & ORS 196.825
Statutes/Other Implemented: ORS 196.600-196.692 & ORS 196.795-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 7-2019, minor correction filed 04/10/2019, effective 04/10/2019
DSL 2-2019, adopt filed 03/28/2019, effective 04/01/2019

Or. Admin. R. 141-085-0694 Special Requirement for CM

(1) Special Requirements for Enhancement as CM. CM enhancement must conform to the following additional requirements. Enhancement must:

(a) Be conducted only on degraded waters of this state;

(b) Result in a demonstrable net gain in functions and values at the CM site as compared to those functions and values lost or diminished as a result of the project and those functions and values that already exist at the CM site;

(c) Not replace or diminish existing functions and values with different functions and values unless the applicant justifies, in writing, that it is ecologically preferable to do so;

(d) Not consist solely of the conversion of one HGM or Cowardin class to another;

(e) Identify the causes of degradation at the CM site and the means by which the CM plan will reverse, minimize or control those causes of degradation in order to ensure self-sustaining success; and

(f) Not consist solely of removal of non-native, invasive vegetation and replanting or seeding of native plant species.

(2) Special Requirements for Preservation as CM. Preservation may be used for meeting the CM requirement when the water of this state proposed for preservation is demonstrated to be under threat of destruction or adverse modification and one of the following applies:

(a) The preservation site supports a significant population of rare plant or animal species;

(b) The preservation site is a rare type (S1 or S2);

(d) The preservation site, with existing and ongoing management, is in good condition and is highly functioning (as determined using a Department-approved assessment method) and serves a documented watershed need.

(3) Preservation as the Preferred CM Option. Preservation may be accepted as the preferred CM option when the lost or diminished functions and values are exceptionally difficult to replace. Examples of such waters include, but are not limited to, vernal pools, fens, bogs and tidal spruce wetlands.

(4) At the option of the applicant, CWM may consist of any one or a combination of the following CWM ratios for commercial aggregate mining operations where both the mining operation and the CWM are conducted on converted wetlands (not including pasture):

(a) One acre of wetland and open water habitat, with depths less than 35 feet, for one acre of wetland impacted;

(b) Three acres of wetland and open water habitat, with depths greater than 35 feet, for one acre of wetland impacted; and

(c) One acre of a combination of restored, created or enhanced wetland and upland, comprising at least 50 percent wetland, for one acre of wetland impacted.

(d) The Department may also apply the following CWM measures for commercial aggregate mining operations on converted wetland (not including pasture):

(A) Allow for staged CWM or mined land reclamation required under ORS 517.700; or

(B) Allow the applicant, upon approval by the Department, to pay the entire cost of CWM according to the following criteria:

(i) On an annual basis for a period not to exceed 20 years over the life expectancy of the operation, whichever is less; or

(ii) On an annual basis over time at a monetary rate per cubic yard or ton of aggregate material removed annually from the site.

History

Statutory/Other Authority: ORS 196.600-196.692 & ORS 196.825
Statutes/Other Implemented: ORS 196.600-196.692 & ORS 196.795-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 8-2019, minor correction filed 04/10/2019, effective 04/10/2019
DSL 2-2019, adopt filed 03/28/2019, effective 04/01/2019

Or. Admin. R. 141-085-0695 Administrative Protection of CM Sites

(1) Administrative Protection Instruments. All CWM sites must be protected from adverse impacts in perpetuity with appropriate protection instruments. Administrative protection for CNWM sites may be required.

(2) Protection Instrument Standards. Protection instruments must meet the following standards:

(a) The permanent protection instrument must prohibit any uses of the CM site that would violate conditions of the removal-fill authorization or otherwise adversely affect functions and values provided by the CM site;

(b) Any proposed revisions to the protection instrument require prior approval from the Department;

(d) Conservation easements must provide the Department a third party right-of-enforcement; and

(e) Must include a Right of Entry or an access easement, conveyed to the Department and recorded on the deed for all CM sites on non-public lands, using a template provided by the Department.

(3) Publicly Owned CM Sites. For publicly owned CWM sites, administrative protection may be provided through an adopted management plan. Such plan will provide for appropriate protection of the CM site as determined by the Department.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: 196.600-196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0700 Financial Security for CM Sites

(1) Purpose. Financial security instruments are required for CM sites as a guarantee that the CM will be constructed, monitored and maintained in accordance with removal-fill authorization requirements.

(2) Exceptions. Financial security Instruments are required for CM projects except in the following circumstances:

(a) No financial security instrument is required for projects conducted by government agencies;

(b) The Department may waive the requirement for a financial security instrument for wetland impacts 0.20 of an acre or less; and

(c) Financial security instruments are not required when CM is satisfied by purchase of credits from a wetland mitigation bank, an in-lieu fee program or payment in-lieu mitigation.

(3) Types of Financial Security Instruments. The Department may allow the following types of financial security instruments:

(a) Surety bonds executed by the permit holder and a corporate surety licensed to do business in Oregon;

(b) Assignment of deposit must be issued by a bank licensed to do business in Oregon, assigned to the Department, and upon the books of the bank issuing such certificates;

(c) Letters of credit issued by a bank authorized to do business in the State of Oregon that are irrevocable prior to release by the Department; and

(d) Such other financial instrument as the Department deems appropriate to secure the financial commitment of the applicant to fulfill the success requirements of the CM.

(4) Financial Security Form. The applicant must file the financial security instrument or instruments on a form or forms prescribed and furnished by the Department. Financial security instruments must be made payable to the Department and must be submitted to the Department prior to permit issuance or prior to release of credits from a mitigation bank.

(5) Commencement of the Liability Period. The period of liability will begin at the time of authorization issuance. The liability period must be renewed until the Department deems the CM to be complete and the Department releases the permittee from any further monitoring requirements.

(6) Determining the Amount. For issuance of an authorization requiring a financial security, the Department will set the amount of the financial security instrument equal to either the current cost of mitigation bank credit(s) within a service area covering the removal-fill site, or the current cost of payment in-lieu mitigation, whichever is greater. For mitigation banks, the amount must be sufficient to ensure a high level of confidence that the mitigation will be successfully completed.

(7) Financial Security Instrument Replacement. The Department may allow a permit holder to replace an existing financial security instrument with another if the total liability is transferred to the replacement. The Department will not release an existing financial security instrument until the permit holder has submitted and the Department has approved the replacement.

(8) Financial Security Instrument Release. The Department will authorize release of the financial security instrument when the CM meets the requirements of the CM plan and the conditions of the removal-fill authorization. The permit holder must file a request with the Department for the release of all or part of a financial security instrument. The request must include:

(a) The precise location of the CM area;

(b) The permit holder’s name;

(d) The amount of the financial security instrument filed and the portion proposed for release; and

(e) A description of the results achieved relative to the permit holder’s approved CM plan.

(9) Forfeiture. The Department may declare forfeiture of all or part of a financial security instrument for any project area or an increment of a project area if CM activities fail to meet success criteria, the permittee fails to provide monitoring reports, or fails to follow other permit conditions related to mitigation. The Department will identify, in writing, the reasons for the declaration.

(10) Determination of Forfeiture Amount and Use of Funds. The permit holder must forfeit the amount of the outstanding liability in the financial security instrument. The Department will either use the funds collected from the security forfeiture to complete the CM or deposit the proceeds in the Oregon Removal-Fill Mitigation Fund.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0705 Requirements for CM Plans

(1) CM Plan Content. CM Plan detail must be commensurate with the size and complexity of the proposed mitigation. A CM Plan is not required for proposed CM by means of using credits from an approved bank, advance mitigation site, in-lieu fee mitigation or payment in-lieu mitigation. A CM plan for permittee responsible CM must include the sections listed below.

(a) CM plan overview, including:

(A) CM ecological goals and objectives;

(B) The CM concept in general terms including a description of how the plan, when implemented, will replace the functions and values of the impacted waters of this state;

(C) For CWM, mitigation site acreage by method(s) of mitigation proposed (restoration, creation and enhancement) and by proposed HGM and Cowardin classification for each method;

(D) For CNWM involving a channel, the mitigation site acreage and linear feet of channel by method(s) of mitigation proposed (restoration, creation and enhancement); and

(E) Summary of proposed losses and gains of functions and values. The Department reserves the right to disqualify losses or gains attributable to actions under the applicant’s control within seven years prior to the delineation or application submittal date, whichever comes first.

(b) CM site ownership and location information:

(A) CM site ownership information (name, address, phone). If this is different from the applicant, copies of legal agreements demonstrating permission to conduct the CM and willingness of the property owner to provide long-term protection are required;

(B) Legal description (Township, Range, Quarter and Quarter-quarter Section and tax lot or lots); and

(C) CM site location shown on a USGS or similar map showing the CM site location relative to the impacted site, longitude and latitude, physical address, if any (e.g., 512 Elm Street), road milepost (e.g., mp 25.21), and river mile (e.g., rm 3.2 to 3.3), or the name of the mitigation bank or in-lieu fee.

(c) A description of how the proposed CM addresses each of the principal objectives for CM as defined in OAR 141-085-0680.

(d) If permittee-responsible mitigation is proposed, CM site existing conditions, including the following, as applicable.

(A) If wetlands or tidal waters exist on the CM site, then the following information must be provided:

(i) A wetland determination/delineation report pursuant to OAR 141-090 for existing wetlands (or for tidal waters, any wetlands above highest measured tide elevation), as necessary to confirm acreage of proposed CM;

(ii) Identification of HGM and Cowardin class(es) and subclass(es) of all wetlands and tidal waters present within the CM site; and

(iii) A general description of the existing and proposed water source, duration and frequency of inundation or saturation, and depth of surface water for wetlands or tidal waters on the CWM site.

(B) If channels exist on the CM site, then the following information must be provided:

(i) Flow permanence (intermittent or perennial);

(ii) Stream size class (small, medium, or large), as set forth by Oregon Department of Forestry in OAR 629-635-0200 Sections (13) and (14); and

(iii) Whether the channel is Essential Indigenous Anadromous Salmonid Habitat (ESH).

(C) A description of the major plant communities and their relative distribution, including the abundance of exotic species within the CM site and associated buffers.

(D) Approximate location of all water features (e.g., wetlands, streams, lakes) within 500 feet of the CM site.

(E) Any known CM site constraints or limitations.

(F) Plans for CM by means of restoration must include documentation sufficient to demonstrate that the site was formerly, but is not currently, a water of this state.

(G) Plans that involve enhancement must include identification of the cause(s) of degradation and how the plan will reverse it and sustain the reversal.

(e) A functions and values replacement assessment. The applicant must demonstrate whether the functions and values that will be lost by the project will be replaced by the functions and values predicted at the CM site. Predicted functions and values should be based on the reasonably envisioned future state of the CM site based on the CM design. A summary of the assessments must be placed in the body of the CM plan, and supporting data sheets or assessment model outputs must be placed in an appendix of the CM Plan. A replacement assessment is not required when CM is proposed to be fulfilled by purchase of legacy credits, in-lieu fee mitigation credits not associated with a Department-approved project, or payment in-lieu mitigation.

(f) CM drawings and specifications, including:

(A) Proposed construction schedule;

(B) Scaled site plan(s) showing CM project boundaries, existing and proposed boundaries of waters of this state, restoration, creation and enhancement areas, buffers, existing and proposed contours, cross-section locations, construction access location and staging areas;

(D) Plant list for each Cowardin and HGM wetland and tidal waters class at the CWM site and buffers at all CM sites (include scientific names and wetland indicator status);

(E) Schematic of any proposed water control structures;

(F) Identification of any water rights necessary to sustain the intended design and functions. When water rights are required, the applicant must provide documentation that the water right has been secured prior to issuance.

(G) For CM sites involving tidal waters, plan views and cross-sections must show relevant tidal elevations relative to mean lower low water (MLLW) using the nearest local tidal datum. The elevation of MLLW must be referenced to the North American Vertical Datum 1988 (NAVD88).

(g) Proposed CM performance standards. The applicant may propose to use applicable pre-defined performance standards as approved by the Department, or may provide CM site-specific performance standards that:

(A) Address the proposed ecological goals and objectives for the CM;

(B) Are objective and measurable; and

(h) A description of the proposed financial security instrument. The Department will determine the amount of security required. A final financial security instrument will be required prior to permit issuance unless otherwise approved by the Department.

(i) A monitoring plan including specific methods, timing, monitoring plot locations, and photo-documentation locations.

(j) A long-term maintenance plan describing:

(A) How the applicant anticipates providing for maintenance of the CM site beyond the monitoring period to ensure its sustainability (e.g., maintenance of any water control structures, weed management, prescribed burning, and vandalism repair);

(B) Expected long-term ownership of the CM site and the anticipated responsible party or parties for long-term maintenance; and

(k) The CM plan must identify the long-term protection instrument for the CM site in accordance with OAR 141-085-0695.

(l) If permittee-responsible mitigation is proposed and the application for a permit or authorization is submitted on behalf of a closely held corporation, limited partnership, limited liability company or trust, the Department will require from each shareholder or stockholder, limited partner, member, trustee, current beneficiary or other principal:

(A) A joint and several personal guarantee securing compliance with mitigation obligations; and

(B) A written agreement to make all reasonable efforts to maintain the business entity in active status until all mitigation obligations have been satisfied.

(C) For the purpose of subsection (L) of this section, a "closely held corporation" is one in which all shares are held by less than five individuals.

(m) The Department may require additional information as necessary to determine the appropriateness, feasibility and sustainability of the proposed CM and at any time prior to the permit decision may make recommendations for improvements to CM plans.

(2) CM Plans Using Preservation. A CM plan using preservation must include:

(a) Functions and values assessment of the removal-fill site and site proposed for preservation;

(b) Maps showing the preservation site including all delineated wetlands or tidal waters, and any associated buffers, to be conserved;

(d) The surrounding land uses and an analysis of both the short-term and long-term known and probable effects of those land uses and activities on the preserved waters of this state, including any associated buffers;

(e) Measures that may be necessary to minimize the effects of surrounding land uses and activities on the preserved waters of this state, including the use of buffers;

(f) Identification of the party or parties responsible for long-term protection of the preservation site;

(g) A long-term protection instrument;

(h) A long-term management plan with a funding mechanism that addresses the specific management needs to optimize and maintain functionality and ecological sustainability of the waters of this state and any associated buffers to be preserved; and

(i) The protection instrument, management plan and funding mechanism must be in place prior to issuance of the authorization.

(3) Authorization Conditions for CM Plans.

(a) The Department will review the CM plan for sufficiency. In approving the final CM plan, the Department may impose authorization conditions necessary to ensure compliance.

(b) The approved CM plan becomes an enforceable part of the removal-fill authorization. In the event of conflict between CM Plan provisions and removal-fill authorization conditions, the authorization conditions prevail.

(c) Regardless of the expiration date of the authorization, all compensatory mitigation conditions remain enforceable until the Department declares that the CM has been successful.

(d) The permit holder cannot delegate responsibility for CM requirements, unless the Department has officially transferred the mitigation obligation.

(e) If applicable, the Department will approve necessary draft administrative protection instrument(s) prior to permit issuance. A copy or copies of the recorded administrative protection instrument(s) must be submitted to the Department with the post construction report unless the Department approves another schedule.

(f) For authorizations involving payment in-lieu mitigation as CM:

(A) The individual removal-fill permit or letter of authorization for an activity will not be issued until payment has been made as approved by the Department; and

(B) Once an authorized removal-fill permit activity has begun, the payment is non-refundable.

(g) For authorizations involving a mitigation bank or in-lieu fee credit purchase, proof of the purchase is required prior to issuance of the authorization.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 9-2019, minor correction filed 04/16/2019, effective 04/16/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0710 Monitoring Requirements for CWM

(1) Purpose. The purpose of the CM monitoring requirement is to provide information for the Department to:

(a) Determine whether the CM complies with the conditions of the authorization and whether the CM has achieved its stated goals, objectives and performance standards;

(b) Determine whether the CM is replacing wetland and tidal waters area, including any required buffers;

(d) Provide information for removal-fill program monitoring.

(2) Monitoring Reports. The permit holder must monitor the CM site and provide to the Department monitoring reports commensurate with CM site size and complexity. Those reports must include at minimum:

(a) A post construction report demonstrating as built conditions and discussing any variation from the approved plan. Unless waived by the Department, the post construction report must be submitted within 90 calendar days of completing grading;

(b) An annual written monitoring report that includes all data necessary to document compliance with CM conditions and performance standards; and

(3) Duration. Monitoring must be conducted for a minimum period of five growing seasons after the completion of all the initial plantings, unless otherwise specified by the Department.

(4) Final Monitoring Report Requirements. To determine whether the CM project will meet acreage and functional replacement requirements, the Department must receive by not later than the fifth year of the monitoring program the following additional documentation:

(a) Mapping of the CM site boundary and for CWM projects, verification of quantities of actual restoration, creation and enhancement acreages achieved by HGM and Cowardin class; and

(b) Comparison of actual functions and values attained at the CM site compared to the predicted functions and values for the CM site identified in the CM Plan.

(5) Additional Monitoring. The Department may require modifications to the CM plan, as well as require additional monitoring, if the Department determines that the CM fails to meet performance standards, replacement acreage requirements, or replace functions and values.

(6) Release from Monitoring Obligations. When the Department determines that the CM complies with the conditions of the removal-fill authorization, the Department will notify the permit holder in writing that additional monitoring is not required.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & ORS 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 10-2019, minor correction filed 04/16/2019, effective 04/16/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0715 Mitigation for Temporary Impacts

Applicants for projects that involve temporary impacts to waters of this state must provide a rehabilitation plan for rectification of temporary impacts. Rectification must include re-establishment of pre-existing contours and pre-existing vegetation. A monitoring plan to confirm the reestablishment of waters of this state, or reestablishment of vegetation may be required.

History

Statutory/Other Authority: ORS 196.600-196.692 & ORS 196.825
Statutes/Other Implemented: ORS 196.600-196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0720 Mitigation Banking Purpose, Applicability and Policies

(1) Purpose and Applicability. These rules describe the requirements to establish and operate mitigation banks, which can be used to compensate for impacts to waters of this state. These rules pertain to mitigation banks that compensate for impacts to all types of waters of this state.

(2) Coordination with the Corps of Engineers. The Department will coordinate with and participate on the Interagency Review Team as a co-chair agency with the Corps of Engineers to establish mitigation banks that also meet the federal regulatory requirements, as appropriate.

(3) Development of Mitigation Banks is Encouraged. The Department encourages the development and will facilitate the expeditious approval of mitigation banks.

(4) Compensation for Expected or Historical Losses to Aquatic Resources. Mitigation banks must be located and designed to compensate for expected or historical losses to aquatic resources by:

(a) Maintaining regional functions and values of aquatic resources in their service area;

(b) Matching the demand for credits with losses to the water resources of this state; and

(5) Banks Must Meet Principal Objectives for CM: Mitigation banks established and operated under these rules must meet the principal objectives of compensatory mitigation in OAR 141-085-0680.

(6) Subject to All CM Rules. Mitigation banks are subject to all rules governing CWM and CNWM, as applicable.

(7) Collaboration with Public Resource Protection and Restoration Programs. The Department encourages collaboration with voluntary watershed enhancement projects in conjunction with, but supplemental to, the generation of compensatory mitigation credit, when greater ecological gains can be recognized. Except where public funding is specifically authorized to provide compensatory mitigation, or the Department otherwise approves the use or accounting of such funds, funds dedicated to non-compensatory aquatic resource restoration or preservation projects will not generate transferable mitigation credit.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0725 Process for Establishing Mitigation Banks

(1) Pre-prospectus Meeting with the Department. To initiate a mitigation bank, a prospective bank sponsor must request a meeting with the Department for initial review of the mitigation concept, site suitability, and content of the Prospectus.

(2) Department Review of Draft Documents, Generally. The process for establishing a mitigation bank involves the development of a Prospectus and Mitigation Bank Instrument (MBI) in consultation with an interagency review team (IRT). In an effort to supply the IRT with complete documents that meet the requirements of these rules, multiple drafts and completeness reviews may be required.

(3) Submittal of the Prospectus. After discussion of the mitigation concept with the Department, a mitigation bank sponsor must submit a Mitigation Bank Prospectus. A Mitigation Bank Prospectus must include:

(a) Site information including location, size, ownership, soil mapping, and recent air photo;

(b) The objectives of the proposed mitigation bank;

(d) The proposed service area;

(e) A market or other analysis that demonstrates the general need for the mitigation bank;

(f) A description of the technical feasibility of the proposed mitigation bank;

(g) The proposed ownership arrangements and long-term management strategy for the mitigation bank;

(h) How the mitigation bank addresses each of the principal objectives for CM listed in OAR 141-085-0680; and

(i) Names and addresses of all landowners within 500 feet of the bank.

(4) Prospectus Completeness Review. Within 30 calendar days of the Department's receipt of a Prospectus, the Department will conduct an initial review to determine if the Prospectus is complete and the information contained in the Prospectus adequately addresses the requirements. Following the Prospectus completeness review, the Department will inform the applicant of one of the following findings:

(a) The Prospectus is complete and will proceed to the public notice; or

(b) The Prospectus is incomplete.

(5) Incomplete Prospectus. If the Department determines that the Prospectus is incomplete, the Department will notify the sponsor in writing and list the missing or deficient information. The Department will take no action on the incomplete Prospectus until the required information is submitted. The sponsor must resubmit the entire amended Prospectus for reconsideration, unless instructed by the Department to do otherwise. Submission of a new or amended Prospectus starts a new 30 calendar day initial review period.

(6) Department May Decline to Participate. If a mitigation bank sponsor cannot demonstrate the need for the mitigation credits or the technical feasibility and ecological desirability of the bank, the Department may decline to participate in its development.

(7) Public Notice of Prospectus. Upon determining that a Prospectus is sufficient, the Department will issue a public notice entitled, "Intent To Create A Mitigation Bank." The Department will:

(a) Post the notice on the Department’s web site for 30 calendar days;

(b) Send the notice to city and county planning departments, affected state and federal natural resource and regulatory agencies, adjacent landowners, conservation organizations and other interested persons requesting such notices;

(d) Solicit comments for 30 calendar days from the date of the public notice.

(8) Consideration of Comments Received During the Public Notice Period. All comments received will be provided to the bank sponsor and to the IRT. If comments are not received from an interested party within the 30-day comment period, the Department will assume the entity does not desire to provide comments.

(9) Establishment of an Interagency Review Team (IRT) and the Role of the IRT. The Department will invite participants to serve on an IRT within 30 calendar days of the date of the public notice. The Department will serve as chair (or co-chair) of the IRT.

(a) The Department will invite the following to nominate a representative for an IRT:

(A) State natural resource agencies, including Oregon Department of Environmental Quality, Oregon Department of Fish and Wildlife, and Oregon Department of Land Conservation and Development;

(B) Federal natural resource agencies, including the U.S. Fish and Wildlife Service, U.S. Environmental Protection Agency, and National Oceanic and Atmospheric Administration (NOAA) Fisheries;

(C) Local regulatory and natural resource agencies, including the Soil and Water Conservation District, and the local Government Planner or equivalent.

(b) The Department may invite other members of the IRT based on particular interest in the project by regulatory and resource agencies, where such agencies have authorities and/or mandates directly affecting, or affected by, the project, and persons and groups with any specific expertise that may be required by the Department in development of the MBI.

(c) The IRT acts in an advisory capacity to the Department in the establishment and operation of mitigation banks. The IRT may:

(A) Review and provide input to the Department on the Prospectus and the comments received during the public notice for use in the development of the MBI;

(B) Review and provide input on the draft MBI;

(D) Provide input on adaptive management of the mitigation bank, as necessary, to achieve the ecological goals and objectives.

(10) Mitigation Bank Instrument (MBI). After consideration of the public comments and input from the IRT, the bank sponsor must develop a Draft Mitigation Bank Instrument (MBI) for submittal to the Department. If the sponsor intends that the MBI serve as the permit application, the sponsor must notify the Department of this intention at the time of submittal of the first draft MBI. If an MBI is used in place of a permit application, in addition to all requirements below, it must meet the requirements for fees, content, and review procedures as specified in OAR 141-085-0545 through 141-085-0565. The draft MBI must contain:

(a) All requirements for CM plans per OAR 141-085-0680 through 141-085-0710; and

(b) The applicant must also provide the following information:

(A) The proposed service area for the bank, including a map clearly showing recognizable geographic place names and watershed boundaries;

(B) Demonstration of the need for the bank as shown by past removal-fill activities, projected demographics for the proposed service area, statements of expected activities from the local planning agency, and like documentation;

(C) A description of the projected losses of waters of this state in the service area by HGM and Cowardin wetland classes or stream type as defined in OAR 141-085-0690;

(D) Proof of ownership including a title report and disclosure of any and all liens or easements on the bank site. If the sponsor does not own the land, the MBI must contain explicit legal and recordable permission granted by the landowner to perpetually dedicate the land upon which the proposed bank and any associated buffer is located;

(E) A description of the methods and results of the evaluation of ecological stressors, such as contaminants, present at the bank site that could compromise the wetland functions;

(F) Description of the location and plant community composition of reference site(s), unless an HGM reference data set is used;

(G) Description of the method(s) used to determine the number of credits to be created at the proposed bank, as well as those that will be used to account for and report credit and debit transactions;

(H) The proposed credit release schedule linked to achievement of specific performance standards;

(I) Detailed contingency plans describing how project deficiencies or performance failures will be corrected, including assignment of responsibilities for failures such as floods, vandalism, damage by pests and wildlife, invasion by weedy vegetation, etc.;

(J) Land use affidavit;

(K) A statement indicating when each of the conditions of the MBI will terminate, unless they are perpetual in nature; and

(L) A draft interagency bank instrument agreement following the current template document provided by the Department. Exceptions to the template must be approved in writing by the Department.

(11) Review of the Draft MBI. Within 30 calendar days of the Department's receipt of a draft MBI, the Department will conduct an initial review to determine if the MBI is complete and the information contained in the MBI adequately addresses the requirements. Following the review, the Department will inform the sponsor of its findings, either:

(a) The draft MBI is complete and will proceed to the IRT review process; or

(b) The draft MBI is incomplete.

(12) Incomplete Draft MBI. If the Department determines that the draft MBI is incomplete or deficient, the Department will notify the sponsor in writing and list the missing or deficient information. The Department will take no action on the incomplete draft MBI until the required information is submitted. The applicant must resubmit the entire draft MBI for reconsideration, unless instructed by the Department to do otherwise. Submission of a new or amended draft MBI starts a new 30 day review period.

(13) IRT Review of the Draft MBI. Upon notification that the draft MBI is complete, the sponsor must provide copies to the IRT for review. At the next available IRT meeting, the IRT will review and discuss the draft MBI and identify any issues that need to be resolved prior to finalizing the MBI. IRT meetings will be held as necessary to resolve issues identified by the co-chairs.

(14) Preparation of the Final MBI. When revisions have been completed and issues identified through the IRT process have been resolved, the sponsor must submit a final MBI to the Department and IRT members.

(15) Final Approval of the MBI. Within 30 calendar days of receipt of the final MBI, the Department will notify the sponsor and the IRT whether the agency will approve the MBI.

(16) Appeal of Department Decision. Appeals of the Department decision to affirm or deny mitigation bank approval will be administered according to OAR 141-085-0575.

(17) Construction Timing. At their own risk, a sponsor may begin construction of a bank before approval of the final MBI if the sponsor:

(a) Provides the Department with detailed documentation of the baseline conditions existing at the proposed site(s) of the bank; and

(b) Receives written consent from the Department before undertaking any construction. However, such consent from the Department does not exempt the sponsor from having to apply for, and obtain a removal-fill permit, if required. Written consent from the Department recognizes the sponsor's intent to create a bank but does not guarantee subsequent approval of the MBI by the Department. The Department assumes no liability for the sponsor's actions.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0730 Establishment of Mitigation Credits

(1) Credit Options. Credits can be established by using:

(a) The minimum mitigation requirements as stated in OAR 141-085-0692 with adjustments, as appropriate; or

(b) By applying a function based credit accounting method approved by the Department. Credits within a bank are determined by the difference between the baseline conditions of the bank prior to restoration, enhancement or creation activities, and the increased functions and values of the water resources of this state that result, or are expected to result, from those activities.

(2) Bonus Credits. Bonus credits may be recognized, at the discretion of the Department in consultation with the IRT, to cover the reasonable costs of the addition of long-term stewardship provisions to existing banks that were approved without such measures.

(3) Buffer Area Credits. Credits may be granted for buffers at the discretion of the Department. Such buffers will be subject to appropriate administrative site protection pursuant to OAR 141-085-0695.

(4) Wetland Credits for Non-Wetland Areas. The Department may recognize wetland credits for improvement of non-wetlands such as in-stream channel habitat, riparian floodplains, non-wetland inclusions in wetland/upland mosaics, and other ecosystem components that provide ecological benefits to a larger wetland bank.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0735 Release, Use and Sale of Mitigation Credits

(1) Initial Release of Credits Must Be Specified in the MBI. The maximum number of credits that may be released for sale in advance of achieving performance standards will be clearly specified in the MBI. In no case may this amount exceed 30 percent of the total credits anticipated for each phase of bank construction. Advance releases require a commensurate financial security per OAR 141-085-0700.

(2) Release of Credits Must Be in Compliance with MBI. The Department will not allow the sale or exchange of credits by a mitigation bank that is not in compliance with the terms of the MBI, the Removal-Fill Law, and in the case of a mitigation bank, all applicable rules governing CM. The Department may consult with the IRT in order to determine noncompliance and appropriate remedies, including enforcement action. The Department may, in consultation with the IRT, modify the credit release schedule, including reducing the number of credits or suspending credit transfers, when necessary to ensure that all credit transfers are backed by mitigation projects with a high probability of meeting performance standards.

(3) Sales to Permit Applicants. After credits have been released to the bank sponsor, they may be sold to permit applicants upon approval by the Department that such credits will satisfy the mitigation obligation of a specific permit, or to resolve an enforcement case. Each credit sale transfers the mitigation obligation from the permit applicant to the sponsor.

(4) Sales to Public Benefit Corporations or Public Bodies. At the request of a mitigation bank sponsor, the Department may authorize the withdrawal of mitigation bank credits by a public benefit corporation as defined in ORS 65.001 or a public body. Such entities will be designated by the Director for the purpose of reserving credits for future use in accordance with this subsection. The Director will manage such transactions to ensure that each credit is used no more than once to satisfy a use in accordance with this section. Mitigation Banks must report every credit sale to the Department and will provide an annual credit ledger.

(5) The Department May Purchase Bank Credits. Funds from the Oregon Removal Fill Mitigation Fund may be used to purchase approved bank credits where such purchases will provide appropriate compensatory mitigation.

(6) Records and Reporting. The Department will maintain a record of credit releases and withdrawals for each active wetland mitigation bank.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0740 Authorization for Mitigation Banks

(1) Authorization Requirement. Bank sponsors must obtain a removal-fill permit for any removal-fill necessary to create a proposed bank in jurisdictional areas. At the discretion of the Department, the MBI may serve as the application if complete pursuant to OAR 141-085-0550, and may also serve as the Department's authorization. If the Department accepts the MBI as the application for a removal-fill permit, the bank sponsor must pay the applicable fee for a removal-fill application.

(2) Baseline Conditions Must Be Approved Prior to Construction. When removal-fill permits are not required to establish a mitigation bank, the Department will approve baseline conditions prior to construction.

(3) MBI Constitutes a Department Order. If a removal-fill permit is not required to construct a mitigation bank, the Department will consider the fully executed MBI an enforceable order.

(4) Draft MBI May Be Circulated for Public Notice. For mitigation banks that do not require a permit for construction, or for such banks that the Department elects to allow the MBI to serve as the permit application, a 15-calendar day public notice will be provided to the public of the Department’s intent to approve the bank. The Department may elect to circulate a public notice of the MBI according to OAR 141-085-0560. If an MBI is used in place of a removal-fill permit application, it must meet the requirements for fees, content, and review procedures as specified in OAR 141-085-0545 through 141-085-0565.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0745 In-Lieu Fee Mitigation

The Department may approve the use of in-lieu fee mitigation as a category of the mitigation banking program (OAR 141-085-0720 through 141-085-0740).

(1) Applicability. In-lieu fee mitigation involves the payment of funds to an approved sponsor to satisfy compensatory mitigation requirements for impacts to waters of this state. In-lieu fee mitigation differs from other forms of mitigation in that advanced credits can be released upon approval of a program Instrument, before Department approval of the mitigation site.

(2) Policies. In-lieu fee mitigation is subject to all rules governing mitigation banking (OAR 141-085-0720 through 141-085-0745), as applicable.

(3) Implementation. The Department will establish a method for implementing in-lieu fee mitigation, including, but not limited to the following elements:

(a) Additional information required for a program instrument outlining the operation and use of an in-lieu fee program, including, but not limited to a planning framework for identifying and securing mitigation sites within the defined service area, proposed advance credit release and justification, and accounting procedures;

(b) Timelines to implement compensatory mitigation projects to satisfy advance credit sales, and

(4) Qualifying Sponsors May Be Limited. The Department may limit the number and type of in-lieu fee sponsors.

History

Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2026, repeal filed 05/26/2026, effective 05/03/2027
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0750 Payments to and Expenditures from the Oregon Removal-Fill Mitigation Fund

The Department will use the Oregon Removal-Fill Mitigation Fund to hold and disperse money collected from the Payment In-Lieu (PIL) and In-Lieu Fee (ILF) Mitigation programs sponsored by the Department.

(1) Payments. The Department will calculate payments for PIL and ILF based on:

(a) Actual costs and expenses of the off-site compensatory mitigation divided by the number of credits anticipated from the mitigation if these are known at the time of the payment, or

(b) Estimated costs and expenses for off-site compensatory mitigation for the region of the state where the Department, to the greatest extent practicable, determines the off-site compensatory mitigation may be conducted.

(c) Estimated costs and expenses for off-site compensatory mitigation will be assessed based on the formula: Payment = [A + R + RMV + LT] ÷ mm, where:

(A) A = Administrative Costs calculated as 10% of the sum of R, RMV and LT;

(B) R = Restoration Costs calculated as the sum of all anticipated costs per unit area. Anticipated costs include but are not limited to project design and engineering, construction, planting, and seven years of monitoring and maintenance. These costs will be based on a biennial survey of regional project data submitted to the Oregon Watershed Restoration Inventory, The Conservation Registry, projects funded by the Department, and/or surveys of restoration consulting firms and practitioners;

(D) LT = Long-Term Management Costs calculated as 30% of the Restoration Costs (R),

(E) mm = Mitigation Multiplier representing the number of credits typically generated per unit area of mitigation conducted.

(2) Limitations on Oregon Removal-Fill Mitigation Fund Expenditures. The Department will expend funds from the Oregon Removal-Fill Mitigation Fund to:

(a) Restore, enhance, create or preserve water resources of this state (including acquisition of land or easements as necessary to conduct restoration, enhancement, creation or preservation projects) as compensatory mitigation to compensate, replace or preserve functions and values lost or diminished as result of an approved project;

(b) Purchase credits from an approved mitigation bank for the purpose of fulfilling the mitigation requirements of an approved project;

(d) Conduct site management for the compensatory mitigation project as necessary to assure that the mitigation is successful; and

(e) Administer the program and fund a staff position.

(3) Geographic Limitations of Funds Expenditures. The Department will expend funds collected under the PIL option within the basin where the removal-fill site occurs, unless the Department determines that this option is not feasible.

History

Statutory/Other Authority: ORS 196.825 & 196.600-196.692
Statutes/Other Implemented: 196.600-196.692 & 196.800-196.990
DSL 3-2026, amend filed 05/26/2026, effective 05/03/2027
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0755 Advance Mitigation

(1) Set-Aside Excess Credits. As part of the existing, active individual removal-fill permit application process, an applicant may request that the Department consider that the proposed permittee-responsible CM (as documented in a CM Plan prepared in accordance with OAR 141-085-0705) could produce mitigation credits in excess of those needed to satisfy project requirements.

(2) Additional Information Required. If the applicant desires to preserve the option of receiving additional mitigation credit from the excess credits for future projects by the same applicant and by up to one additional party, then the following additional information must be submitted as a part of the applicant's CM plan:

(a) The specific area(s) of the CM site that compensates for the specific permitted effect, and identification of the specific areas of the CM site that are proposed for credit in future projects;

(b) A table showing how much credit, under suitable mitigation accounting in OAR 141-085-0692, is being claimed at the CM site; and

(3) Applicant Assumes All Risk. If the applicant elects to pursue this option, he/she does so completely at his/her own risk. CM in advance does not create the presumption that a proposed future wetland impact will be authorized, or that the CM will be considered suitable CM. A separate alternatives analysis will be required for each and every separate individual removal-fill permit application.

(4) Monitoring Requirements. Monitoring to determine if success criteria are met must continue for five years or until the success criteria are achieved, whichever is longer. Such monitoring requirements will apply to each designated mitigation area, or for the entire mitigation site if constructed at one time.

(5) Conversion of Unused Credits. Unused credits may be converted to mitigation bank credits at the discretion of the Department and in accordance with OAR 141-085-0720 to OAR 141-085-0740.

History

Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0768 Advance Aquatic Resource Plans

(1) Purpose. The purpose of an Advance Aquatic Resource Plan is to create a flexible framework for persons to voluntarily plan for anticipated future water resource; development conflicts within a defined planning area; identify and characterize water resources; make necessary decisions now to avoid and minimize those conflicts to the extent practicable; and develop a compensatory mitigation strategy to offset the anticipated unavoidable impacts to water resources. An approved Advance Aquatic Resource Plan is intended to inform and streamline future removal-fill permit application processes for projects within a defined planning area. The Advance Aquatic Resource Plan is not intended to replace the Wetland Conservation Plan (ORS 196.668 et seq.) as a wetland conservation planning tool where binding local land use decisions are sought.

(2) Outcomes.

(a) The Department’s approval of an Advance Aquatic Resource Plan pursuant to this section may provide regulatory outcomes which include, but are not limited to:

(A) Jurisdictional determinations pursuant to OAR 141-090.

(B) Reduction in removal-fill permit application processing timelines otherwise established by OAR 141-085 for projects within the Advance Aquatic Resource Plan area.

(C) Modification of the application completeness requirements otherwise established by OAR 141-085 for projects within the Advance Aquatic Resource Plan area.

(D) Consideration of the approved Advance Aquatic Resource Plan when applying criteria for issuance of a permit pursuant to ORS 196.825 for projects within the Advance Aquatic Resource Plan area.

(b) Approval of an Advance Aquatic Resource Plan will not authorize removal-fill activity within the Plan area.

(3) Standards for Establishing Advance Aquatic Resource Plans.

(a) Required Minimum Content. The level of analysis required for each content element is only broadly defined by this administrative rule. It is the Department’s intent that Advance Aquatic Resource Plans will be a flexible tool with the level of analysis customized to meet the specific planning goals, purpose, and needs for the defined area, and considering the outcomes sought from the Department. An Advance Aquatic Resource Plan will include the following minimum content unless otherwise approved in writing by the Department:

(A) Advance Aquatic Resource Plan Sponsor. The Advance Aquatic Resource Plan will identify the person acting as the Plan sponsor. The sponsor will: coordinate land owners and local government participation in Plan development; coordinate with the Department and other affected local, state and federal agencies through Plan development process; administer the Technical Advisory Committee created pursuant to this section; and be responsible for Advance Aquatic Resource Plan content, execution, reporting, amendments, and renewals as may be required.

(B) Advance Aquatic Resource Plan Goals, Purpose and Need. The Advance Aquatic Resource Plan will: establish a comprehensive set of goals for the effort including both conservation and development objectives; describe the purpose for developing an Advance Aquatic Resource Plan for the defined area; identify what public need(s) the Plan seeks to fulfill; and, describe outcomes sought from the Department by approval of the Plan.

(C) Coverage Area. The Advance Aquatic Resource Plan will define, in text and map form, the geographic boundaries of the Advance Aquatic Resource Plan coverage area. An Advance Aquatic Resource Plan will not include lands planned or designated for farm or forest uses, or mixed farm and forest uses, pursuant to goals adopted by the Land Conservation and Development Commission under ORS 197.225.

(D) Activity Types. The Advance Aquatic Resource Plan will describe the types of removal-fill activities or projects intended to be addressed by the Advance Aquatic Resource Plan.

(E) Identification of Waters of This State. Unless otherwise approved by the Department, waters of this State within the coverage area will be identified, at a minimum, to the standards defined in a subset of the local wetlands inventory standards and guidelines that are described in (OAR 141-086-0180 through OAR 141-086-0240) as designated by the Department. At the discretion of the Advance Aquatic Resource Plan sponsor and with input from the Department, boundaries may be defined by a complete delineation pursuant to OAR 141-090, and therefore meet requirements for future removal-fill authorizations pursuant to (4)(c)(D) of this section.

(F) Characterization of Waters of This State. Wetland functions and values will be evaluated using the Oregon Rapid Wetland Assessment Protocol. Other methods may be allowed at the discretion of the Department. Non-wetland waters of this State will be functionally assessed using methods approved by the Department. Other ecological evaluation parameters will be defined in consultation with the Department and Technical Advisory Committee created pursuant to this section, depending on natural resource characteristics of the Plan area and the defined goals, purpose and need for the Advance Aquatic Resource Plan.

(G) Avoidance and Minimization Strategy. The Advance Aquatic Resource Plan will:

(i) Describe the methodology and results for identifying protection or development of wetlands and other Waters of This State considering, at least, the characterization results from (3)(a)(F) of this section and anticipated development needs for the coverage area. Protection and development identifications may be further refined at the Plan sponsor’s discretion and with input from the Technical Advisory Committee created pursuant to this section.

(ii) Include text and maps illustrating designation results and the rationale for each protection and development identification.

(iii) Identify buffers as necessary to maintain, protect or restore the functions and values of waters of this State around identified protection areas, and describe proposed uses to be allowed in the buffer areas.

(iv) Include demonstration that practicable, less damaging alternatives, including alternative locations for development, are not available for any waters of this State that are proposed for a development identification.

(v) Include a description of proposed best management practices that will ensure that the adverse effects to waters of this State, where not avoidable, will be minimized.

(vi) Include description of proposed allowed, conditional and disallowed uses for protection and development identification categories.

(H) Compensatory Mitigation Plan. The Advance Aquatic Resource Plan will describe how anticipated future adverse impacts to Waters of this State within the coverage area will be mitigated. This portion of the Plan may be conceptual in nature or it may have sufficient detail so that it satisfies all of the requirements that are specified in OAR 141-085 for compensatory mitigation plans. The level of mitigation planning will be determined at the discretion of the Advance Aquatic Resource Plan sponsor and with input from the Department considering the goals, purpose and need for the Advance Aquatic Resource Plan and the desired outcome(s) sought from the Department. The compensatory mitigation plan must, at a minimum, address the principal objectives for compensatory mitigation specified in OAR 141-085-0680(2).

(I) Public Involvement Plan. The Advance Aquatic Resource Plan will describe a plan for engagement with affected local, state and federal government agencies, affected tribal governments and the public through the planning process.

(J) Other Advance Aquatic Resource Plan Elements. Other elements may include, but are not limited to: cultural resources evaluations, storm water management planning as may be required for future Clean Water Act Section 401 water quality certifications, biological assessments for Endangered Species Act compliance, and environmental contamination assessments.

(b) Department Approval Prior to Initiating Planning Work. A person intending to develop an Advance Aquatic Resource Plan shall consult with the Department before initiating the planning work. The purpose of this consultation is to ensure that an Advance Aquatic Resource Plan is the appropriate planning tool; that the scope and scale of the Plan is commensurate with the goals, purpose, need and desired outcomes; and that sufficient Department resources are available. The Department may, in its discretion, decline to participate in developing an Advance Aquatic Resource Plan for any reason, including for example, that the Department determines that there are not adequate staff resources available or that an Advance Aquatic Resource Plan is not a suitable tool for the identified need. The decision to participate or decline to participate will be made in writing by the Department within 30 days of receiving a written request. The Department’s decision whether to participate is a final order in other than a contested case and may be appealed as provided in ORS Chapter 183. An Advance Aquatic Resource Plan will only proceed with an affirmative statement of Department participation.

(c) Technical Advisory Committee Participation. The Advance Aquatic Resource Plan sponsor will establish and convene an advisory body to provide input on Advance Aquatic Resource Plan content and development. At a minimum, advisory committee membership will include (to the extent these agencies desire involvement or unless otherwise approved by the Department): Department of State Lands, Department of Fish and Wildlife, Department of Environmental Quality, Department of Land Conservation and Development, US Army Corps of Engineers, National Marine Fisheries Service, US Fish and Wildlife Service. Membership may additionally include, but is not limited to: land owners or their representative(s) within the Advance Aquatic Resource Plan coverage area; applicable local government staff; local watershed council(s) representative; business representatives, conservationist or environmental interests, affected tribal governments, and elected officials. Other membership will be at the discretion of the Advance Aquatic Resource Plan sponsor.

(4) Approval Process for Advance Aquatic Resource Plans.

(a) Submittal Requirements. A completed Advance Aquatic Resource Plan will be submitted to the Department in the form, manner and number prescribed by the Department. Submittals will be processed as a request for a proposed order of the director.

(b) Completeness and Technical Sufficiency Review.

(A) The Department will conduct a review to determine if all required Advance Aquatic Resource Plan elements are complete and technically sufficient to prepare a draft order of the director.

(B) If the Department determines that the Advance Aquatic Resource Plan is incomplete or technically insufficient, the Department will notify the Advance Aquatic Resource Plan sponsor in writing including identification of issues and provide opportunity for re-submittal. This determination does not preclude further agency consideration of the subject matter.

(A) In developing the Draft Order, the Department will evaluate the information contained in the Advance Aquatic Resource Plan and conduct any investigation that the Department considers appropriate.

(B) In developing the Draft Order, the Department will consult with affected local, state and federal agencies and affected tribal governments to assess any potential effects of the Advance Aquatic Resource Plan on those entities’ programs, policies or requirements.

(C) If the Advance Aquatic Resource Plan is complete and technically sufficient, the Department will prepare a draft order including at least the following elements:

(i) Findings of compliance or noncompliance with the determinations described in (4)(e)(B) of this section.

(ii) A summary of the Advance Aquatic Resource Plan coverage area and activity types addressed by the Plan.

(iii) A description of other eligibility criteria or standards for projects involving removal or fill activity to be included in the Advance Aquatic Resource Plan.

(iv) Jurisdictional determinations of presence or absence of waters of this State or approval of boundaries of waters of this State, depending on level of identification conducted pursuant to (3)(a)(E) of this section. All remaining requirements to obtain wetland delineations for future removal-fill applications will be defined.

(v) A description of standards by which future applications for removal-fill authorizations will be processed including the requirements for when an application will be determined complete, and whether the Department will shorten its processing timelines. At the Department’s discretion, application completeness requirements may be reduced to the extent such information is already provided in the Advance Aquatic Resource Plan. The information included in future removal-fill application must be sufficient to allow the Department consider the factors listed in ORS 196.825(3), to consider any other factors identified by the Department, and to make the determinations that are listed in ORS 196.825(1). At the Department’s discretion, applications for future removal-fill authorization may be processed on a shorter timeline than otherwise established by OAR 141-085 except that public review requirements pursuant to OAR 141-085 will always apply.

(vi) Any general conditions that are identified in the Advance Aquatic Resource Plan for activities addressed by the Plan.

(vii) A description of the annual reporting requirements, amendment process, and 5-year renewal process for the approved Advance Aquatic Resource Plan.

(viii) Grounds and mechanisms for suspension or revocation of the order.

(ix) Any other conditions of, or limitations to, the order that the Department determines are appropriate.

(d) The draft order shall be released for a 30-day public comment period prior to finalization. The form and manner of public noticing shall be determined by the Department. After completion of the public comment period, the Sponsor shall be provided the opportunity to respond to public comments received. The Department may release an amended draft order for a second 30-day public comment period if the Department determines that significant changes to the draft order warrant a second comment period.

(e) Final Order. A final order will approve, approve with conditions, or deny the Advance Aquatic Resource Plan.

(A) If denied, the director shall identify the reasons for denial and provide an opportunity to amend and resubmit the Advance Aquatic Resource Plan. This determination does not preclude further agency consideration of the subject matter

(B) The director will only issue an order approving an Advance Aquatic Resource Plan where the director determines that:

(i) The Advance Aquatic Resource Plan is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 to 196.905;

(ii) The Advance Aquatic Resource Plan would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing, and public recreation;

(iii) A public need is fulfilled by approval of the Advance Aquatic Resource Plan; and

(iv) Implementation of the Advance Aquatic Resource Plan not inconsistent with governing jurisdiction(s) Comprehensive Plan(s) and local land use regulations and ordinances.

(f) Appealing the Decision. A final order of the director approving, approving with conditions, or denying an Advance Aquatic Resource Plan may be appealed as described in OAR 141-085-0575 for permit decisions. All final orders will include a notice of the right to a contested case hearing.

(5) Administration of Approved Advance Aquatic Resource Plans.

(a) Annual Reports. The Advance Aquatic Resource Plan sponsor shall prepare an annual report summarizing use of the Advance Aquatic Resource Plan for the previous year, its effectiveness in meeting the established goals and purpose, and any known, substantive changes in conditions within the coverage area that could materially affect ongoing implementation or cause unintended adverse effects to waters of this State. Other annual report content requirements may be defined in the final order. The first annual report is due one year from the date that the Department issued the final order. Each subsequent report will be due the same date each year thereafter that the final order approving the Advance Aquatic Resource Plan remains in effect.

(b) Amendment Process. The Department or plan sponsor may initiate an Advance Aquatic Resource Plan or final order amendment upon a finding that the current Advance Aquatic Resource Plan or final order is not substantially achieving the goals, purpose or need; or substantive changes in conditions within the coverage area are materially affecting ongoing Advance Aquatic Resource Plan implementation or causing unintended adverse effects to waters of this State. The requirements and mechanism for Advance Aquatic Resource Plan or final order amendment will be defined in the final order. At the Department’s discretion, draft amended Advance Aquatic Resource Plans and draft amended orders may be circulated for Technical Advisory Committee review and public comment.

(A) Each final order is effective for five years from the date of issuance. The final order may be renewed up to four times, for a total term of 20 years. Upon written notice from the plan sponsor that renewal of the Advance Aquatic Resource Plan is desired, the Department will review each approved Advance Aquatic Resource Plan and final order. The plan sponsor shall submit the request, if any, at least six months prior to the expiration of the final order. After such review the director may request new or updated information and act to modify, reissue or revoke the final order approving the Advance Aquatic Resource Plan. In making this decision, the Department will consider whether:

(i) There have been substantive changes in circumstances or conditions that would affect the waters of this State to a greater extent than originally anticipated or would otherwise adversely affect the compliance of the Advance Aquatic Resource Plan with the determinations made pursuant to (4)(d)(B) of this section;

(ii) There have been changes in applicable laws, administrative rules or regulations that require the Advance Aquatic Resource Plan or final order to be re-evaluated;

(iii) The Advance Aquatic Resource Plan and final order, as implemented, over the preceding five years is substantially meeting the goals, purpose and need as established in the Advance Aquatic Resource Plan and final order.

(B) The Department may initiate Advance Aquatic Resource Plan or final order review at any time outside of the five-year cycle if it determines that there have been changes in circumstances or conditions that must be considered in advance of the five-year cycle.

(d) Suspension, Revocation. At any time, and upon a finding by the director that the Advance Aquatic Resource Plan or final order is not being implemented in good faith or implementation of the Advance Aquatic Resource Plan or final order is otherwise allowing or facilitating significant, unanticipated adverse effects to waters of this State, the director may either suspend the final order and provide opportunity to correct, or revoke the final order without opportunity to correct. Each final order will state whether it may be suspended or revoked without a right to an appeal. If a right to appeal a suspension or revocation is allowed, it shall be as provided in OAR 141-085-0575 for permit decisions.

(e) Cancellation. Upon written request by the Advance Aquatic Resource Plan sponsor and for any reason, the Department will act to cancel the final order.

History

Statutory/Other Authority: ORS 196.825800 - 196.990 & 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14

Or. Admin. R. 141-085-0770 Complaints and Investigations

(1) Violations. A violation is:

(a) Removal-fill without a valid authorization;

(b) Non-compliance with any condition of an authorization;

(c) Obtaining an authorization or reporting on conditions of an authorization by misrepresentation or by failure to fully disclose known material facts;

(d) Failing to comply with any term of an enforcement agreement or order;

(e) Failing to comply with the requirements of the Removal-Fill Law or these rules; or

(f) Non-compliance with any condition of an approved wetlands conservation plan.

(2) Reporting Suspected Violations; Complaints. Alleged or suspected violations may be reported as complaints to the Department in person, by e-mail, facsimile, telephone or in writing. When reports of alleged or suspected violations are submitted to the Department in confidence, as expressly requested by the complainant, and the information is not otherwise required by law to be submitted, the Department may keep the name of the person making the report confidential if the criteria set forth in ORS 192.501 or 192.502 are met.

History

Statutory/Other Authority: ORS 196.825 & 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0775 Enforcement Actions and Procedures; Appeals

(1) Enforcement Powers. The Department is authorized to take or recommend such civil, criminal or administrative actions as are necessary to enforce the Removal-Fill Law and these rules.

(2) Administrative Remedies. The Department may take appropriate action to remedy violations or alleged violations or to enforce these rules, a permit or authorization, or a final order or agreement.

(a) Appropriate enforcement action depends upon the nature of the violation and may include, but is not limited to, requiring the violator to:

(A) Comply with conditions of a permit, authorization or order;

(B) Remove an unpermitted fill;

(D) Pay a civil penalty;

(E) Provide compensatory mitigation for unauthorized impacts or mitigation shortfalls. At the discretion of the Department and in accordance with these rules, mitigation may include payment in-lieu of mitigation, purchase of mitigation bank credits or purchase of in-lieu fee credits; and

(F) Forfeit their right to apply for new removal-fill permits or authorizations (debarment).

(b) The following administrative remedies may be used to implement appropriate enforcement actions:

(A) Cease and desist orders may be issued to prevent damage. The Department may issue an order requiring any person to cease and desist from any project if the Department determines that such violation or threatened violation presents an imminent and substantial risk of injury, loss or damage to water resources.

(i) A cease and desist order may be entered without prior notice or hearing and will be served upon the person by personal service or by registered or certified mail.

(ii) A cease and desist order will state that a hearing will be held on the order if a written request for hearing is filed by the person subject to the order within 10 calendar days after receipt of the order.

(iii) If a person subject to a cease and desist order files a timely request for a hearing, the Department will hold a contested case hearing before the Office of Administrative Hearings pursuant to the applicable provisions of ORS 183.310 through 183.550.

(iv) Cease and desist orders will not be stayed during the pendency of a hearing conducted under this section.

(v) Neither the Department nor any duly authorized representative of the Department will be liable for any damages a person may sustain as a result of a cease and desist order issued under this section.

(B) Consent agreements and consent orders are cooperative in nature and are used when an agreement can be reached to resolve the violation. In signing a consent agreement, the violator waives his or her right to appeal;

(C) Restoration orders may be issued when a cooperative agreement is not reached to resolve the violation. Restoration orders are appealable;

(D) Revocation or suspension of an authorization, as per OAR 141-085-0780

(E) Consent agreements, consent orders and restoration orders may include a civil penalty and corrective action necessary to resolve the violation; and

(F) Notice of violations may be issued to establish that a violation has occurred. Notice of violations are appealable.

(3) Notice and Due Process. The Department will give notice of any proposed restoration order relating to a violation by personal service or by mailing the notice by registered or certified mail to the person or public body affected. Any proposed restoration order will include a notice of violation and will describe the nature and extent of the violation.

(4) Request for Hearing. If a person subject to a restoration order under this section files a timely request for hearing, the Department will hold a contested case hearing before the Office of Administrative Hearings according to the applicable provisions of ORS 183.310 through 183.550. If the person fails to request a hearing, a final order will be issued upon a prima facie case made on the record of the agency.

(5) Restoration Orders Must Be Appealed Within 20 Calendar Days. Any person aggrieved by a proposed restoration order may request a hearing within 20 calendar days of the date of personal service or mailing of the notice.

(6) Written Requests for Hearings. Any written request for a hearing concerning a cease and desist or proposed restoration order shall admit or deny all factual matters stated in the proposed restoration order and shall state any and all claims or defenses regarding the alleged violation. Any factual matters not denied shall be presumed admitted, and failure to raise a claim or defense shall be presumed to be a waiver of such claim or defense. Evidence shall not be taken at the hearing on any issue not raised in the written request for hearing.

(7) Civil Remedies. Any violation of ORS 196.600 to 196.990 or of any rule or final order of the Department under 196.600 to 196.990 may be enjoined in civil abatement proceedings brought in the name of the State of Oregon; and in any such proceedings the Department may seek and the court may award a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from such violation. Civil remedies sought under this section may also include property liens. Proceedings thus brought by the Department will set forth, if applicable, the dates of notice and hearing and the specific rule or order of the Department, together with the facts of noncompliance, the facts giving rise to the public nuisance, and a statement of the damages to any public right of navigation, fishery or recreation, if any, resulting from such violation.

History

Statutory/Other Authority: ORS 196.825 & 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0780 Revoking or Suspending an Authorization; Allowing Corrective Action

(1) Revocation or Suspension if Out of Compliance. The Department may revoke or suspend an authorization if an alleged violator is not in compliance with any conditions of an authorization, or if the applicant failed to provide complete and accurate information in the permit application.

(2) Suspension for Delinquency of Payment. Any authorization shall be suspended during any period of delinquency of payment of the renewal fee and will be treated as though no authorization had been issued.

(3) Procedures to Revoke or Suspend Authorization. The Department may initiate the following proceedings to revoke an authorization:

(a) The Department will issue a Notice of Intent to Revoke or Suspend to the alleged violator stating the intent to revoke or suspend the authorization; and

(b) The Notice will include the following information:

(A) A statement of the alleged violator's right to a contested case hearing within 20 calendar days of receiving the notice;

(B) A statement of the authority and jurisdiction under which the contested case hearing is to be held;

(D) A short and plain statement of the matters asserted or charged as constituting the violation(s); and

(E) A statement of any action that is necessary by the alleged violator to correct or offset the effects of the violation including, but not limited to, removal of filled material or replacement of removed material.

(A) If the alleged violator completes such action within the specified time period, the revocation or suspension procedure will be terminated; and

(B) If the authorization holder fails to request a contested case hearing, the Department may issue a final order revoking or suspending the authorization after presenting a prima facie case demonstrating that a violation has occurred.

(4) Revocation or Suspension of Multi-Year Authorizations. If a person fails to comply with reporting requirements or any other condition of a multi-year authorization the Department may revoke the multi-year status and require annual renewal, suspend the permit pending correction, or take any other enforcement action available to the Department.

(5) Appeals Procedures. Procedures for requesting an appeal on a revocation or suspension are as set forth in OAR 141-085-0775(4) and (6).

History

Statutory/Other Authority: ORS 196.825 & 196.600 - 196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Or. Admin. R. 141-085-0785 Civil Penalties; Appeals

(1) Civil Penalties May Be Assessed. In addition to any other remedy allowed by law or these rules, the Department may assess a civil penalty for any violation of the Removal-Fill Law, these rules, an authorization or an order issued pursuant to OAR 141-085.

(2) Each Day is a Separate Offense. Each day a violation continues constitutes a separate offense for which the Department may assess a separate penalty.

(3) Multiple Penalties May Be Assessed. A civil penalty assessed on an initial violation may be followed by one or more separate civil penalties for failure to comply with a restoration order issued on the same violation.

(4) Required Notice; Right to Appeal Within 20 Calendar Days. The Department will give written notice of intent to assess a civil penalty by personal service or by registered or certified mail to the permit holder or person (hereinafter referred to as “party”) incurring the civil penalty. The notice will include the following:

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

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

(d) A statement of the amount of civil penalty assessed and terms and conditions of payment; and

(e) Notification that the party may request a contested case hearing.

(5) Appeals Procedures. Procedures for requesting an appeal on a civil penalty are as set forth in OAR 141-085-0775(4) and (6).

(6) Calculating the Civil Penalty. The amount of civil penalty (F), as expressed in U.S. currency dollars, will be determined by the Department using the following formula: F = BPCI:

(a) "B" is the base fine factor of $1,000;

(b) "P" is the prior knowledge factor to be determined as follows:

(A) A value of 1 will be applied if the alleged violator was unaware of the Removal-Fill Law at the time of the alleged violation;

(B) A value of 2 will be applied if the alleged violator was aware of the Removal-Fill Law at the time of the alleged violation and in cases of permit non-compliance; or

(C) A value of 5 will be applied if the alleged violator had a previous violation. A previous violation exists, if there was an adjudication (either in court or administrative hearing), or the violator failed to appeal an enforcement order (and a final order was issued), or the violator signed a consent agreement. This value will not be imposed if the previous violation occurred more than five years prior to the current incident.

(c) The cooperation value ("C") will be determined by the Department after reviewing the past history of the person in taking all feasible steps or procedures necessary or appropriate to correct the violation for which the penalty is being assessed. The value will be assessed as follows:

(A) A value of 1 will be applied when the person responds to communications from the Department, supplies information requested by the Department, permits access to the site to conduct site investigations and/or complies with restoration as requested by the Department; or

(B) A value of 3 will be applied when the person:

(i) Has ceased to be responsive to communications from the Department;

(ii) Has ceased to be cooperative in providing information as requested by the Department; or

(iii) Does not cease the activity alleged to constitute a violation or threatened violation after receiving verbal or written notification from the Department.

(d) "I" is the water resource adverse effect factor to be determined as follows:

(A) A value of 1 will be applied if the damage to the resource is minimal and/or the resource is expected to naturally self-restore within one year; or

(B) A value of 3 will be applied if the adverse impacts are significant and/or not expected to naturally self-restore within one year. In the case of permit non-compliance, a value of 3 will be applied if failure to correct the deficiency could result in reasonably expected adverse impacts to waters of this state or a deficiency in the obligation to provide mitigation.

(e) In cases where the prior knowledge (P) factor is greater than one (1) and the cooperation (C) factor is greater than one (1), the total amount of the civil penalty (F), in dollars U.S. currency, will be doubled, not to exceed $10,000 per day.

(f) In determining whether to assess a separate penalty for each day a violation continues, the Department may consider the number of days during which the activity alleged to constitute a violation occurred, as well as the number of days the adverse effect of this activity continues unabated.

(7) Failure to Pay Civil Penalty. Once the final adjudication of any civil penalty has been calculated and noticed, the amount of the civil penalty will increase by the amount of the original civil penalty for every 20 calendar days that pass without the alleged violator remitting payment to the Department for the full amount of the civil penalty and the Department taking receipt of the payment. In no case will the amount of the civil penalty be increased by more than ten times the original civil penalty amount. If a civil penalty or any portion of the civil penalty is not paid, interest will accrue at the rate of nine percent per annum on the unpaid balance (pursuant to ORS 82.010).

(8) Civil Penalty Relief. The alleged violator may request from the Department a reduction or waiver of the civil penalty by showing evidence of financial hardship. The request must be received within 20 calendar days from the date of personal service or mailing of the notice of civil penalty. Evidence provided as to the alleged violator's economic and financial condition may be presented without prejudice to any claim by the person that no violation has occurred or that the person is not responsible for the violation. The Department will reduce or waive a civil penalty upon request if the Department determines that the imposition of the full civil penalty would result in extreme financial hardship for the violator, and that the public interest in avoiding extreme financial hardship outweighs the public interest in deterring future violations.

(9) Settlement. The Department may settle violations and penalties in the exercise of its discretion taking into account the cooperation of the violator in addressing the violation.

History

Statutory/Other Authority: ORS 196.825 & 196.600 - 196. 692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2011, f. & cert. ef. 3-1-11
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09

Division 86 WETLAND CONSERVATION PLAN

Or. Admin. R. 141-086-0005 Definitions

For purposes of these rules, the definitions contained in ORS 196.800 apply. In addition, the following definitions apply:

(1) “Buffer Area” means a non-wetland area adjacent to wetlands or waters of the state that screens, shelters, protects or enhances the wetland or waterway resource value.

(2) “Deep Draft Development Estuary” means those estuaries designated as such under OAR 160, division 17.

(3) “Fully Offset” means to replace all wetland functions and values proposed for development in a plan area by wetland creation, restoration or enhancement.

(4) “Inventory” means a map or series of maps and additional data showing wetland boundaries and conditions.

(5) “Mitigation Plan” means a written plan detailing the location, timing, type and methods to replace proposed wetland losses through creation, restoration or enhancement of wetland functions and values and the means to assure the long-term protection and maintenance, and monitoring of mitigation sites.

(6) “Monitoring Provisions” means a written plan that details the requirements and timing for monitoring and reporting wetland resources, functions and characteristics.

(7) “Practicable Alternatives” means those alternatives which are available and capable of being done, taking into consideration environmental, economic and social factors.

(8) “State Wetland Inventory” means an inventory which contains the location, wetlands types, and approximate boundaries of wetlands in the State of Oregon. This inventory is continually revised as additional information is received or obtained by the Division of State Lands.

(9) “Substantial Change in Circumstances” means any changes in law or physical conditions which would adversely affect the wetland resources of a plan area.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 6-1994, f. & cert. ef. 10-20-94
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0010 Request for Approval

(1) When a local government has developed a proposed wetland conservation plan pursuant to ORS 196.678, it may request the Director to review and approve the plan. Approval requests shall be sent to the Director of the Division of State Lands.

(2) The approval request shall include:

(a) A letter or resolution from the governing body of the local government requesting review by the Division;

(b) Six copies of the wetland conservation plan, containing all information required by ORS 196.678(2), and including implementing ordinances or land use regulations, inventories and other factual information used in developing the plan. All maps of regulated wetlands shall be at a scale of 1" = 200' or larger;

(c) A list of all documents used in developing the wetland conservation plan that are not included with each plan copy due to excessive volume or size. This list shall include minutes and any "record of proceedings." The list shall briefly describe the contents of the items not included and identify where those items may be examined. The local government shall make such supporting documents available at hearings before the Director held pursuant to OAR 141-086-0025;

(d) The name and address of the person authorized to receive any and all correspondence from the Division; and

(e) A list of the names and addresses of all agencies, districts, and public or private citizen groups affected by or interested in the proposed wetland conservation plan.

(3) Upon receipt of an approval request, the Division shall review the request to determine that it contains the documents and information required by section (2) of this rule:

(a) If the request is complete, the Division shall commence review of the approval request pursuant to OAR 141-086-0025, prepare a proposed order pursuant to ORS 196.681(1)(b) and OAR 141-086-0012, and provide public notice of the opportunity for comment pursuant to 141-086-0015;

(b) If the approval request is incomplete, the Division shall, within 14 days of receiving the request, notify the local government in writing of the specific requirements of section (2) of this rule that have not been met. The local government has 20 days from the receipt of such notice in which to provide the Division with this required information. If the local government fails to meet this deadline, the approval request will be considered to be withdrawn unless a request for extension has been granted by the Division prior to the deadline.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0012 Proposed Order

When the Director receives an approval request for a proposed wetland conservation plan as defined by ORS 196.687, the Director shall conduct an evaluation of the submitted plan and determine if the plan complies with the requirements of ORS 196.681 to 196.684 and OAR 141-120-0000 through 141-120-0230. The Director shall then prepare a proposed written order pursuant to ORS 196.681(1)(b).

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 6-1994, f. & cert. ef. 10-20-94
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0015 Notice of Opportunity for Comment

(1) The Division shall, in writing, provide notice of the opportunity for public comment on the proposed order, as required by ORS 196.681(1)(c). Such notice shall include the following:

(a) A map showing the area affected;

(b) A description of the city or county which would implement the plan;

(c) The location where the order may be inspected by the general public if a copy of the order has not been included with the notice;

(d) The location where additional information concerning the plan may be inspected; and

(e) The date by which public comments submitted to the Division must be received.

(2) Such notice shall be posted at the Division's office at 775 Summer Street in Salem and shall specifically be sent to the following:

(a) City or county planning office which submitted the approval request;

(b) Department of Agriculture;

(d) Department of Fish and Wildlife;

(e) Department of Geology and Mineral Industries;

(f) Department of Land Conservation and Development;

(g) Economic Development Department;

(h) State Parks and Recreation Department;

(i) Water Resources Department;

(j) Oregon State Marine Board;

(k) Historic Preservation Office, Parks and Recreation Department;

(l) Affected neighborhood association(s);

(m) Corps of Engineers;

(n) Environmental Protection Agency;

(o) Federal Emergency Management Agency;

(p) National Marine Fisheries Service;

(q) U.S. Fish and Wildlife Service; and

(r) Any other agencies, associations or individuals who request notice.

(3) The Division shall also publish notice in a local paper of general circulation. Such notice shall contain a description of the area affected by the proposed plan and a statement that this area is being considered for a wetland conservation plan.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0020 Comments

(1) After notice has been provided pursuant to OAR 141-086-0015, there shall be a 30-day period for all interested persons to submit written comments to the Division or to request a public informational hearing. Such request for a hearing must be in writing and must state reasonable grounds for holding the hearing.

(2) The Director shall consider those comments and requests for hearing which are received by the Division within 30 days from the date notice is posted. At the Director's discretion, the Director may consider comments which are received after the 30-day comment period has expired. Also, if the Director holds a public informational hearing concerning the proposed order, the time allowed for public comment shall be extended up to and including the date upon which the hearing is held.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0021 Notice of Hearing

(1) At the Director's discretion, a public informational hearing may be held before issuing a final order on the approval request.

(2) If the Director decides to hold a public informational hearing, written notice of such hearing shall be given, as required by ORS 196.681(1)(c). Such notice shall be provided at least ten days before a hearing is held. Notice of hearing may be included with the notice of opportunity for public comment described in OAR 141-086-0015 or it may be provided separately after public comments have been received by the Division. Notice shall include the following:

(a) A map showing the area affected;

(b) A description of the city or county which would implement the plan;

(d) The date, time and location of the hearing.

(3) Such notice shall be posted at the Division's office at 775 Summer Street in Salem and shall be specifically sent to the parties listed in OAR 141-086-0015(2) and to any additional parties who provided public comment as described in that same rule.

(4) The Division shall also publish notice of the hearing in a local paper of general circulation. Such notice shall contain a description of the area affected by the proposed plan and a statement that this area is being considered for a wetland conservation plan.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0022 Hearing

(1) If a public informational hearing is held, the hearings officer shall state the purpose of the hearing prior to submission of comments by members of the general public. The hearings officer shall take appropriate procedural steps to accomplish the purpose of the hearing.

(2) Interested persons may submit written or oral comments concerning the proposed order. Also, the hearings officer may request that specific persons submit written or oral comments concerning the proposed order.

(3) This public informational hearing is neither a contested case hearing nor a rulemaking hearing as defined in ORS Chapter 183.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0025 Final Agency Decision

(1) Before making a final decision on the approval request, the Director shall review the entire proposed plan, as well as comments submitted in accordance with OAR 141-086-0020 and presented at hearing pursuant to 141-086-0021. In reviewing the plan, the Director may also rely upon information that is not presented in the proposed plan or in submitted comments. The Director may review and develop additional information and may rely upon the Director’s own knowledge.

(2) The results of this evaluation shall be set forth in a written order pursuant to ORS 196.681(6). Copies of the Director’s order shall be sent to all parties listed in OAR 141-086-0015, all persons who submitted comments in accordance with 141-086-0020, and all other persons who have requested a copy of the order orally or in writing.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0030 Review of Wetland Conservation Plans

As described in ORS 196.684(9), an order by the Director regarding approval, amendment or review of a wetland conservation plan shall be reviewable by the Land Use Board of Appeals as a land use decision of a state agency.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0035 Annual Report

If a wetland conservation plan is approved by the Division, the local government enacting the plan shall annually prepare a written report which addresses the current status of the plan. Such annual report shall be sent to the Director of the Division of State Lands. The first annual report must be received by the Division one year from the Division's issuance of the final order on the wetland conservation plan, as described in ORS 196.681(6). Each subsequent annual report shall be received by the Division during that same month every year thereafter.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0040 Amending a Wetland Conservation Plan

(1) When a local government has developed proposed amendments to a land use plan or ordinance, and such amendments will affect lands subject to a wetland conservation plan, the local government shall notify the Division pursuant to ORS 196.684. Notice shall be sent to the Director of the Division of State Lands.

(2) Such notice shall include:

(a) A letter or resolution from the governing body of the local government requesting review by the Division;

(b) Six copies of the proposed amendments to the land use plan, including implementing ordinances, related maps and other factual information used in developing the amended plan; and

(3) The Division shall review the notice for completeness as described in OAR 141-086-0010(3).

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0045 Notice of Opportunity for Comment on Amendments

The Division shall, in writing, provide notice of the opportunity for public comment on proposed amendments to a wetland conservation plan, as required by ORS 196.684(3). Such notice shall be as described in OAR 141-086-0015 and comments must be submitted as described in 141-086-0020.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0050 Hearing on Amendments

At the Director’s discretion, a public informational hearing may be held before taking final action on proposed amendments to a wetland conservation plan. Notice of such hearing, required by ORS 196.684(3), shall be given as described in OAR 141-086-0021. Such hearing shall be held as described in 141-086-0022.

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0055 Final Agency Decisions on Amendments

(1) The Director shall evaluate proposed amendments to a land use plan and issue an order in the manner described in OAR 141-086-0025.

(2) In issuing an order, the Director shall also follow the procedure described in ORS 196.684(4) and (5).

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0060 Periodic Agency Review of Wetland Conservation Plans

(1) The Division shall review each approved wetland conservation plan every five years, as required by ORS 196.684(6).

(2) The Director shall, in writing, provide notice of the opportunity for public comment on the plan, as required by ORS 196.684(7). Such notice shall be given as described in OAR 141-086-0015.

(3) At the discretion of the Director, a public informational hearing concerning the plan may be held. Such notice, as required by ORS 196.684(7), shall be given as described in OAR 141-086-0021. Such hearing shall be held as described in 141-086-0022.

(4) Public comments concerning the plan should address the criteria set forth in ORS 196.684(7).

History

Statutory/Other Authority: ORS 183 & 196
Statutes/Other Implemented: ORS 196.668 - 196.692
LB 4-1990, f. & cert. ef. 11-7-90

Or. Admin. R. 141-086-0100 Duty to Notify of Proposed Activities Within Wetlands

(1) The city or county shall notify the Division of applications proposed within wetlands, as required by ORS 215.418 and 227.350, by delivering a completed "Wetland Land Use Notification Form" for each proposed application to the Division of State Lands.

(2) The Division's response to a submitted notification form, under ORS 215.418(3) and 227.350(3), shall be sent by the Division to the reporting city or county, the landowner, and the applicant of the proposed activity.

[ED. NOTE: Forms referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196.800 - 196.990, 215 & 227
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 10-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0180 Purpose

Pursuant to ORS 196.674 pertaining to the Statewide Wetlands Inventory (SWI), these rules establish a system for uniform wetland identification and comprehensive mapping. These rules also establish wetlands inventory standards for cities or counties developing a wetland conservation plan (WCP) pursuant to 196.678. A Local Wetlands Inventory (LWI) is developed for all or a portion of a city or county according to the standards and guidelines contained in these rules (OAR 141-086-0180 through 141-086-0240).

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0185 Applicability

(1) Once approved by the Department of State Lands (Department), the LWI must be used in place of the National Wetlands Inventory (NWI) and is incorporated into the SWI.

(2) The approved LWI must be used by cities and counties in lieu of the NWI for notifying the Department of land use applications affecting mapped wetlands and other waters (ORS 215.418 and 227.350).

(3) An LWI fulfills the wetlands inventory requirements for Goal 5 and Goal 17 (OAR 660-015 and 660-023). An LWI that meets the additional WCP requirements specified in these rules must be used as the wetlands inventory basis for a WCP.

(4) A wetland function and condition assessment of mapped wetlands must be conducted as part of the LWI using the Oregon Freshwater Wetland Assessment Methodology (OFWAM) published by the Department in 1996. An equivalent functional assessment methodology may be used or adjustments may be made to OFWAM upon written approval by the Director. The assessment results are used to determine the relative quality (functions, values, and condition) of the mapped wetlands and to designate significant wetlands (OAR 141-086-0300 through 141-086-0350) as required for Goal 5, or to assess wetland functions and values for a WCP.

(5) An LWI is used by the Department, other agencies and the public to help determine if wetlands or other waters are present on particular land parcels.

(6) An LWI provides information for planning purposes on the location of potentially regulated wetlands and other waters such as lakes and streams, but is not of sufficient detail for permitting purposes under the state Removal-Fill Law (ORS 196.800 through 196.990). Smaller wetlands may not be mapped, and wetlands may be missed due to lack of onsite access, tree canopy cover and other constraints. A wetland delineation or determination report may be needed for parcels without LWI-mapped wetlands. A Department-approved wetland delineation report for wetlands identified in an LWI is usually needed prior to site development.

(7) All wetlands inventory procedures and products are subject to review and approval by the Department before the products:

(a) Are incorporated into the SWI;

(b) Can be used in lieu of the NWI for Wetland Land Use Notification purposes; or

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94, Renumbered from 141-086-0190(1) & (4)
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0200 Definitions

(1) "Cowardin class or subclass" means the wetland classification according to the U.S. Fish and Wildlife Service's Classification of Wetlands and Deepwater Habitats of the United States, Cowardin et al., 1979.

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

(3) "Department" means the Oregon Department of State Lands.

(4) "Georeferenced" means linking geographic data to known coordinates on the surface of the earth.

(5) "GIS" or "Geographic Information System" means a system of hardware, software and data storage that allows for the analysis and display of information that has been geographically referenced.

(6) "HGM class and subclass" means the hydrogeomorphic classification of the wetland based upon its landscape position and hydrology characteristics, according to the HGM classification developed by the Department.

(7) "Indicator" means the soil, vegetation, and hydrology characteristics or other field evidence that indicate that wetlands are present.

(8) "Inventory" means a systematic survey of an area to identify, classify and map the approximate boundaries of wetlands, and includes the supporting documentation required by these rules.

(9) "Mapping" means representing the identified wetlands and their approximate boundaries on a map.

(10) "Offsite Determination" means a wetland determination conducted without field verification using NWI maps, soils maps, and aerial photographs.

(11) "Other Waters" means waters of the state other than wetlands, such as streams and non-vegetated ponds.

(12) "Probable Wetland" or “PW” means an area noted during the course of LWI development that appears to meet wetland criteria but is less than one half of an acre in size or is small and of undetermined size, and is mapped as a point rather than a polygon on the LWI maps.

(13) "Sample Plot" means a specific area on the ground where soils, vegetation and hydrology data are recorded on a field data form per OAR 141-90-0035(14) in order to make a wetland determination.

(14) "Statewide Wetlands Inventory" or "SWI" means an inventory that contains at minimum the location, type (e.g. classification) and approximate extent of wetlands in the State of Oregon. This inventory is continually revised as additional information is received or obtained by the Department.

(15) "Stream" means a watercourse created by natural processes, or one that would be in a natural state if it were not for human-caused alterations. Stream includes a channelized or relocated stream.

(16) “Visually confirm” or “visual confirmation” means to walk over and/or visually check an area to make a wetland determination and map wetlands and other waters.

(17) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions (ORS 196.800(16)).

(18) "Wetland Delineation Report" means a written document that contains the methods, data, conclusions and maps used to determine if wetlands and/or other waters of the state are present on a land parcel and, if so, describes and maps their location and geographic extent. A wetland determination report documenting wetland presence or absence is included within this definition (OAR 141-090 et seq.).

(19) "Wetland Determination" means a decision that a site may, does, is unlikely to, or does not contain wetlands. A determination does not include the precise location or boundaries of any wetlands determined to be present (OAR 141-090 et seq).

(20) "Wetland Mosaic" means a complex of several wetlands that are interspersed between areas of non-wetland each less than one half of an acre in size, or less than one tenth of an acre in size for a WCP, making them difficult to map.

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0210 Inventory Development Process and Standards

(1) Wetland determinations conducted for the purpose of developing the LWI must be conducted according to the criteria, methodologies and guidance currently accepted by the Department (OAR 141-090 et seq.).

(2) Sources of inventory information must include:

(a) U.S.D.A. Natural Resources Conservation Service county soil survey and county list of hydric soils and soils with hydric inclusions, or other available soil surveys;

(b) NWI maps;

(d) Federal Emergency Management Act floodplain maps, where available;

(e) Other available local wetlands inventories or wildlife habitat inventories that include wetlands;

(f) Department wetland determination/delineation files; and

(g) High resolution (1 meter or finer) color and color infrared (where available) aerial photos taken within five years of inventory initiation. The minimum photo scale must be 1 inch = 200 feet unless another scale is approved by the Department.

(3) Sources of inventory information may include but are not limited to:

(a) LIDAR (Light Detection and Ranging) topographic data;

(b) Irrigation drainage district maps;

(d) Oregon State University Institute for Natural Resources Oregon Explorer data;

(e) Department permit files; and

(f) Resource agencies, including the Oregon Department of Fish and Wildlife and U.S. Fish and Wildlife Service.

(4) Before beginning fieldwork, prepare a field map using an aerial photograph and include the approximate location of:

(a) Any wetlands, deepwater habitats, and streams from the NWI;

(b) Any wetlands from the Department's wetland determination/delineation files or from other inventories;

(d) Wetlands or potential wetlands identified on aerial photos;

(e) Sites to visually confirm based on other leads; and

(f) Properties where access was granted.

(5) Aerial photo interpretation must be tested early in the inventory process by interpreting several wetland types, ground truthing the interpretations, and then completing the aerial photo interpretations.

(6) The local government must be responsible for requesting property access permission from landowners in the study area for parcels identified by inventory staff and/or the Department as possibly containing wetlands.

(7) All potential wetlands that are not assessed with a sample plot and other waters identified through the process described in OAR 141-086-0210(1) through (4) must be visually confirmed to the extent practicable.

(8) Where property access is granted, sample plot data must be provided according to the following minimum standards:

(a) Verify each wetland with at least one sample plot that best characterizes the wetland;

(b) Verify with at least one sample plot each potential wetland where land use activities such as ditching, water diversion, or agricultural practices are likely to have significantly altered site conditions, making observations from a distance or a site walk-over unreliable; and

(c) Verify with at least one-sample plot potential wetlands with unreliable indicators (e.g., one dominant plant that grows in both wetlands and non-wetlands, such as Phalaris arundinacea).

(9) If the LWI will be used for a WCP, in addition to the requirements in OAR 141-086-0210(7) and (8), a minimum of one sample plot must be provided that best characterizes each dominant wetland plant community.

(10) If the landowner denies access permission and if visual confirmation from an adjacent property or road is not possible, employ off-site wetland determination methods.

(11) All wetlands greater than or equal to one half of an acre and all wetlands identified in a Department-approved wetland delineation report must be identified and mapped as polygons. Wetlands that are less then one half of an acre may be mapped as polygons or as probable wetlands. Probable wetlands must be represented as points on the appropriate parcel(s) and should be labeled as "PW” on the maps. No further characterization or assessment is required for probable wetlands in the LWI. Probable wetlands will trigger cities and counties to notify the Department of proposed land use activities affecting mapped wetlands and other waters (ORS 215.418 and 227.350). For a WCP, all wetlands one-tenth acre and larger shall be identified and mapped as polygons.

(12) The aim of the LWI is to map the location of wetlands at an accuracy of approximately 5 meters (16.4 feet). However, the actual accuracy may be less for some wetlands such as seasonal or forested wetlands that could not be visually confirmed.

(13) Each wetland must be assigned a unique identification code.

(14) All previously delineated wetlands from the Department’s files must be field-verified, if possible, to determine if wetlands are still present and are approximately the same size and configuration as when delineated.

(15) All identified wetlands must be classified:

(a) To the class level of Cowardin (and to subclass for scrub-shrub and forested classes) and must include water regime and special modifiers (e.g., "farmed" or "diked/impounded); and

(b) By dominant HGM class and subclass.

(16) When a wetland contains more than one adjoining Cowardin classification, different classes or subclasses greater than 0.25 acres in size must be mapped and labeled as separate polygons.

(17) Artificially created wetlands or other waters (such as irrigation canals and drains, industrial ponds, log ponds, golf course features, and storm water detention ponds that are greater than one half of an acre in size) must be included in the inventory regardless of their jurisdictional status, and their original purpose must be labeled on the inventory maps.

(18) Where a wetland mosaic occurs, the site must be labeled as a wetland/upland mosaic on all inventory maps and so described on the wetland summary sheet.

(19) Streams and other waters must be mapped, but no further documentation such as wetland summary sheets or OFWAM assessment is required. If an existing stream geospatial dataset is used, it may be necessary to adjust the layer to align with riparian or other linear wetlands.

(20) Using OFWAM, each wetland in its entirety must be assessed for all four ecological functions: water quality, hydrologic control, wildlife habitat and fish habitat. Any wetlands that may qualify as a Locally Significant Wetland due to education or recreation use must also be evaluated for those social functions (values) in OFWAM. The remaining functions and conditions in OFWAM do not need to be applied to any of the wetland assessment units. Contiguous wetlands or those in close proximity and assigned different codes may be grouped into a single OFWAM assessment unit based upon the guidance in OFWAM and/or in consultation with the Department.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0220 LWI Reports

(1) A report that meets the requirements in OAR 141-086-0220 (2) and (3) must be developed and submitted to the Department for approval. A minimum of two sets of the final Department-approved LWI report in both paper and electronic format (.pdf file format) must be prepared; one set must be provided to the Department for inclusion in the SWI and the other must be provided to the local government.

(2) The report must document the inventory and mapping processes and results, and include the following information:

(a) A general description of the study area including a description of the landscape setting;

(b) A description of the wetland inventory process including the public involvement process; the inventory methods including the date(s) and scale(s) of source maps and aerial photos used; the offsite and onsite wetland determination procedures including procedures used for visual confirmation and probable wetland identification; and all mapping and map transfer procedures used;

(c) A summary of the inventory results including the total acreage of the study area and the total number and acreage of wetlands identified within the study area, excluding the acreage of deepwater habitat and artificially created wetlands such as detention ponds or aggregate extraction ponds;

(d) A discussion of the OFWAM assessment process (e.g. how assessment units were defined) and the results;

(e) A summary of Locally Significant Wetlands, if identified (may be in table format); and

(f) All figures, with the study area clearly outlined.

(3) Appendices must include:

(a) Sample plot data on standard field data forms per OAR 141-090 et seq.

(b) A summary sheet for each wetland that must at a minimum include:

(A) The unique wetland code;

(B) Street address or equivalent location description;

(D) Approximate wetland size (in acres);

(E) Cowardin classification(s);

(F) HGM classification(s);

(G) Mapped soil unit(s);

(H) Watershed boundaries at the 6th field Hydrologic Unit Code scale as defined by the US Geological Survey or finer;

(I) Sample plot numbers, if any;

(J) Department wetland determination or delineation file numbers, where applicable;

(K) Scientific and common names of dominant plant species;

(L) Primary hydrology sources;

(M) Sampling or visual confirmation date(s) and method;

(N) Locally Significant Wetland determination, if made; and

(O) Comments that describe the wetland, including topographic position, land uses and significant alterations (including agricultural).

(A) Wetlands of Special Interest for Protection (OFWAM, Chapter Five);

(B) Wetland Characterization results (OFWAM, Appendix B);

(D) Answer sheets for all wetland assessment questions (OFWAM, Appendix C);

(E) Function and condition summary sheets for fish habitat, wildlife habitat, water quality, hydrologic control and, if applicable, education and recreation (OFWAM, Appendix C); and

(F) Watershed summary sheet (OFWAM, Appendix C).

(d) Technical staff members and qualifications.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0222 Paper Map Standards

(1) Maps that meet the requirements in OAR 141-086-0222(2) through (5) must be developed and submitted to the Department for approval. A minimum of two sets of the final Department-approved LWI maps in both paper and electronic format (.pdf file) must be prepared; one set must be provided to the Department for inclusion in the SWI and the other must be provided to the local government.

(2) If the study area is covered by more than one wetland map, a single, smaller scale reference map of the complete study area is required. The reference map shall be indexed to the individual, large-scale maps and show, at a minimum, the Public Land Survey System grid, the location and code of all identified wetlands, streams, the study area boundary, and major, named streets.

(3) Wetland maps must include:

(a) Map name;

(b) Scale bar;

(d) Roads, with major roads named, and railroads;

(e) Streams and stream names;

(f) Artificially created wetlands and other waters labeled with their purpose (e.g. storm water pond);

(g) Tax lot lines;

(h) Watershed boundaries at the 6th field Hydrologic Unit Code scale as defined by the US Geological Survey or finer;

(i) Legend that explains all map symbols, line work, and patterns;

(j) Map date (month and year final map prepared);

(k) All wetlands, clearly and accurately drawn and clearly identified by a unique wetland code that relates each wetland to field data forms, tables, databases, wetland summary sheets, and OFWAM summary forms;

(l) Cowardin classification(s) of each wetland per 141-086-0210(15a & 16);

(m) Disclaimer that reads: "Information shown on this map is for planning purposes, represents the conditions that exist at the map date, and is subject to change. The location and extent of wetlands and other waters is approximate. There may be unmapped wetlands and other waters present that are subject to regulation. A current Oregon Department of State Lands-approved wetland delineation is required for state removal-fill permits. You are advised to contact the Department of State Lands and the U.S. Army Corps of Engineers with any regulatory questions."

(n) Numbered sample plots; and

(o) Study area boundary as defined by the local government.

(4) Minimum map scale must be 1 inch = 200 feet (1:2,400).

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09

Or. Admin. R. 141-086-0225 Digital Data Standards

(1) A minimum of two sets of the final Department-approved LWI geospatial datasets must be prepared; one set must be provided to the Department for inclusion in the SWI and the other must be provided to the local government.

(2) A georeferenced ArcGIS compatible dataset with attribute tables and metadata must be developed for each of the following:

(a) Wetland polygons with a unique wetland identification label, Cowardin classification code(s) and modifiers, HGM classification, approximate wetland size, Locally Significant Wetland significance determination (if made), whether it was visually confirmed, and the Department's wetland delineation report file number, if any.

(b) Probable wetland points with PW label;

(d) Other natural bodies of water with names;

(e) Artificially created wetlands and water features (such as irrigation canals and ditches, industrial ponds, log ponds, golf course features, and storm water detention ponds) uniquely identified and purpose of artificially-created feature, if known;

(f) Watershed boundaries (6th order Hydrologic Unit Code scale or finer);

(g) Study area boundary;

(h) Tax lot lines and numbers;

(i) Sample plot dataset with unique identification labels that correspond to the field data form; and

(j) Major streets with name labels.

(3) All georeferenced data sets must be projected using the Oregon Geographic Information Council-endorsed state standard: Oregon Lambert conformal conic (Datum: NAD 83; Units: International feet: 3.28084; Spheroid: GRS1980).

(4) Metadata must be completed for each layer, conform to the current Oregon Geographic Information Council Metadata Standard, and must include a disclaimer as described in OAR 141-086-0222(3m).

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 196.668 - 196.686 & 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01

Or. Admin. R. 141-086-0228 Review and Approval Process

(1) A draft of all the LWI products required in OAR 141-086-0210 through -0225 of these rules must be provided to the Department (if the inventory was not developed by the Department) and the local government(s) for review.

(2) The local government must provide opportunity for public review of and comment on the draft LWI products.

(3) Public and local government comments on draft LWI products must be provided to the Department. The Department will request in writing from the party responsible for preparing the LWI any revisions or additions required in order for the LWI to be approved.

(4) The Department will review final products to ensure that all changes requested by the Department have been adequately addressed.

(5) If the final LWI products meet the requirements in these rules, the Department will send a letter of approval to the local government.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 196.668 - 196.686 & 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01

Or. Admin. R. 141-086-0230 Revisions

(1) A city or county may elect to or may be required by the Department of Land Conservation and Development (DLCD) to revise their LWI. An LWI revision consists of either expanding the study area of an existing LWI or incorporating new wetland location and information into an existing LWI study area. The provisions in subsections (a) through (d) must be followed when an LWI is being revised.

(a) All Urban Growth Boundary expansion areas or other areas not included in the original LWI study area must be inventoried according to the requirements in these rules. If the original LWI area is not updated at the same time, it may still be necessary to update the LWI area adjacent to the new LWI area in order to align wetlands that are continuous between the two areas.

(b) When an LWI is being updated, newly identified wetlands or wetland boundary changes equal to or greater than one half of an acre must be identified, mapped and assessed using OFWAM.

(A) Wetland delineation reports approved by the Department or map errors verified by the Department after the date of the approved LWI;

(B) Aerial photos approved by the Department, taken within five years of inventory revision initiation; and

(d) Wetlands not previously mapped on the LWI must be verified by establishing a sample plot or by visual confirmation as required in OAR 141-086-0210(7) and (8) of this rule; previously mapped wetlands no longer apparent on aerial photos must also be verified with a sample plot or visually confirmed as necessary to confirm their absence.

(2) A draft of the revised LWI products as required in OAR 141-086-0228(1) through (5) must be provided to the Department and is subject to Department review and approval.

(3) If the LWI was used as the basis for an approved WCP, the local jurisdiction must instead:

(a) Provide to the Department, as part of the annual report (OAR 141-086-0035), a revised map and report indicating wetlands filled and wetlands restored, enhanced or created for mitigation; and

(b) Every five years, in conjunction with the Department's five year WCP review (ORS 196.684(6)), conduct an LWI review and incorporate new information, as required in OAR 141-086-0230(1)(b) through (1)(d).

(4) Newly-identified wetlands as identified by a Department-approved wetland delineation report or a removal-fill permit must not be added to the Department-approved Local Wetlands Inventory map without following the procedures outlined by OAR 141-086-0230(1)(a) through (d).

(5) Refinements to the location, extent, and/or absence of wetlands mapped on the LWI, as identified by a Department-approved wetland delineation or a Department wetland determination report, may be made at any time through an administerial process, by annotating the approved LWI or by creating a separate geospatial dataset containing the boundary adjustments, preserving the approved LWI mapping.

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0240 Landowner Notification

(1) When the LWI is approved by the Department, the local jurisdiction must notify by mail within one hundred twenty (120) calendar days all landowners of record whose parcel contains or abuts a mapped wetland or probable wetland.

(2) The local jurisdiction must provide one copy of the landowner notification letter to the Department.

History

Statutory/Other Authority: ORS 196.674 - 196.681 & 196.692
Statutes/Other Implemented: ORS 196.668 - 196.692
DSL 11-2008, f. 12-12-08, cert. ef. 1-1-09
DSL 2-2001, f. & cert. ef. 2-26-01
LB 9-1994, f. & cert. ef. 12-15-94
LB 11-1991, f. & cert. ef. 11-15-91

Or. Admin. R. 141-086-0300 Purpose

ORS 197.279(3) directs the Division of State Lands to establish these criteria and procedures for the identification of significant wetlands under Statewide Planning Goal 5. Local governments will use these technical standards to complete their planning responsibilities for wetlands, which are established by the Land Conservation and Development Commission (OAR 660-023-0100).

History

Statutory/Other Authority: ORS 273.360
Statutes/Other Implemented: ORS 197.299
LB 7-1996, f. 12-13-96, cert. ef. 1-1-97

Or. Admin. R. 141-086-0310 Policy

To protect the state’s wetland resources, the functions and services they provide, and all interests, it is important that clear and consistent criteria be used to identify significant wetlands for planning purposes.

History

Statutory/Other Authority: ORS 273.360
Statutes/Other Implemented: ORS 197.299
LB 7-1996, f. 12-13-96, cert. ef. 1-1-97

Or. Admin. R. 141-086-0320 Uses and Applicability

(1) These rules provide standard criteria for local governments to use to meet their obligations for freshwater wetland planning as set forth by the Land Conservation and Development Commission (LCDC) in Goal 5. These rules do not address planning requirements for estuarine wetlands, which are covered under Statewide Planning Goal 16.

(2) Local governments shall apply the criteria for identifying locally significant wetlands (LSW). As specified in LCDC’s Goal 5 rules (OAR 660-023-0100), the use of these criteria is required within urban growth boundaries (UGBs) and urban unincorporated communities (UUCs). The Goal 5 rules also authorize an option for counties to conduct detailed wetland planning in areas outside of UGBs and UUCs. Should a county choose to do so, the same rules and procedures as for UGBs and UUCs shall apply, including these criteria for significant wetlands.

(3) As provided by LCDC’s Goal 5 rules (OAR 660, division 23), local government planning and zoning responsibilities include the determination, designation, and protection of significant wetlands. A community that has identified significant wetlands prior to this rule should proceed under the provisions of OAR 660-023-0250.

History

Statutory/Other Authority: ORS 273.360
Statutes/Other Implemented: ORS 197.299
LB 7-1996, f. 12-13-96, cert. ef. 1-1-97

Or. Admin. R. 141-086-0330 Definitions

(1) “Director” means the Director of the Division of State Lands or the Director’s designee.

(2) “Division” means the Division of State Lands.

(3) “Indigenous Anadromous Salmonids” are chum, sockeye, Chinook and Coho salmon, and steelhead and cutthroat trout, that are members of the family Salmonidae and are listed as sensitive, threatened or endangered by a state or federal authority.

(4) “Inhabited by” means that a plant or animal species uses the site for rearing, feeding, or breeding or as a migration or dispersal corridor. This does not include incidental use of the site by an animal species.

(5) “Locally Significant Wetlands” or “LSW” are those wetland sites that provide functions or exhibit characteristics that are pertinent to community planning decisions made at a local scale, for example within a UGB. These wetland sites shall be identified by local governments according to the criteria and procedures in sections 141-086-0340 and 141-086-0350.

(6) “Native Plant Community” is used here to indicate a recognized assemblage of plant species indigenous to Oregon. All such wetland plant communities are listed in the most recent version of Classification and Catalog of Native Wetland Plant Communities in Oregon (Oregon Natural Heritage Program).

(7) “Rare Plant Community” is defined as relictual, uncommon or unique in Oregon, determined by number of occurrences and threats following national heritage program criteria (i.e., rarity ranking of G1-G3 or S1-S3). The most concise listing of wetland plant communities in Oregon that meet this standard for rarity is found in Appendix G of the Oregon Freshwater Wetland Assessment Methodology (Oregon Division of State Lands, 1996). The rarity rank of all wetland plant communities is also listed in the most recent version of Classification and Catalog of Native Wetland Plant Communities in Oregon (Oregon Natural Heritage Program).

(8) “Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

History

Statutory/Other Authority: ORS 273.360
Statutes/Other Implemented: ORS 197.299
LB 7-1996, f. 12-13-96, cert. ef. 1-1-97

Or. Admin. R. 141-086-0340 Procedures for Identifying Locally Significant Wetlands

(1) LSW criteria are applied by the local government.

(2) The following base information is required prior to applying the LSW criteria:

(a) An approved Local Wetlands Inventory (OAR 141-086-0110 through 141-086-0240) covering the plan area; and

(b) A function and quality assessment of all inventoried wetlands using the Oregon Freshwater Wetland Assessment Methodology (OFWAM; Oregon Division of State Lands, 1996). Functional assessment descriptors from OFWAM appear in quotation marks in section 146-086-0350 of these rules. An equivalent functional assessment methodology may be used, or adjustments may be made, upon written approval by the Director. If a different assessment methodology is approved, then equivalent terminology will be set out in the Division’s letter of approval.

History

Statutory/Other Authority: ORS 273.360
Statutes/Other Implemented: ORS 197.299
LB 7-1996, f. 12-13-96, cert. ef. 1-1-97

Or. Admin. R. 141-086-0350 Locally Significant Wetland Criteria

(1) Exclusions. Regardless of their standing in relation to the criteria in OAR 141-086-0350(2) or (3) of these rules, wetlands shall not be designated as locally significant if they fall within any one of the following categories:

(a) Wetlands artificially created entirely from upland that are:

(A) Created for the purpose of controlling, storing, or maintaining stormwater; or

(B) Active surface mining or active log ponds; or

(C) Ditches without a free and open connection to natural waters of the state (as defined in OAR 141-085-0010(9)) and which do not contain food or game fish (as defined in ORS 496.009); or

(D) Less than one acre in size and created unintentionally as the result of:

(i) Irrigation water overflow or leakage; or

(ii) Construction activity not related to compensatory mitigation for permitted wetland impacts; or

(E) Of any size and created for the purpose of wastewater treatment, cranberry production, farm or stock watering, settling of sediment, cooling industrial water, or as a golf course hazard.

(b) Wetlands or portions of wetlands that are contaminated by hazardous substances, materials or wastes as per the following conditions:

(A) The wetland is documented as contaminated on either the U.S. Environmental Protection Agency’s (EPA) National Priority List (NPL, also known as the “superfund list”), or the Department of Environmental Quality’s (DEQ) Inventory of Hazardous Substance Sites (ORS 465.225).

(B) Only the portion of the wetland affected by such hazardous substances or wastes shall be excluded from the LSW analysis. Affected portions shall be delineated in consultation with EPA and DEQ, and shall include areas potentially disturbed by clean-up activities.

(C) Contaminated wetlands that have subsequently been removed from the NPL or DEQ Inventory following clean-up shall be re-evaluated under the LSW criteria at the next periodic review.

(2) Mandatory LSW Criteria. A local government shall identify a wetland as locally significant if it meets one or more of the following criteria:

(a) The wetland performs any of the following functions at the levels indicated below using the Oregon Freshwater Wetland Assessment Methodology:

(A) “Diverse” wildlife habitat; or

(B) “Intact” fish habitat; or

(D) “Intact” hydrologic control function.

(b) The wetland or a portion of the wetland occurs within a horizontal distance less than one-fourth mile from a water body listed by the Department of Environmental Quality as a water quality limited water body (303(d) list), and the wetland’s water quality function is described as “intact” or “impacted or degraded” using OFWAM. The 303(d) list specifies which parameters (e.g., temperature, pH) do not meet state water quality standards for each water body. A local government may determine that a wetland is not significant under this subsection upon documentation that the wetland does not provide water quality improvements for the specified parameter(s).

(d) The wetland is inhabited by any species listed by the federal government as threatened or endangered, or listed by the state as sensitive, threatened or endangered, unless the appropriate state or federal agency indicates that the wetland is not important for the maintenance of the species.

(A) The use of the site by listed species must be documented, not anecdotal. Acceptable sources of documentation may include but are not limited to: field observations at the wetland sites during the local wetlands inventory and functional assessments, and existing information on rare species occurrences at agencies such as the Oregon Natural Heritage Program, Oregon Department of Fish and Wildlife, Oregon Department of Agriculture and the U.S. Fish and Wildlife Service.

(B) Input originating from other locally knowledgeable sources constitutes “documentation” if verified by one of the above agencies or a university or college reference collection.

(e) The wetland has a direct surface water connection to a stream segment mapped by the Oregon Department of Fish and Wildlife as habitat for indigenous anadromous salmonids, and the wetland is determined to have “intact” or “impacted or degraded” fish habitat function using OFWAM.

(3) Optional LSW Criteria. At the discretion of the local government, wetlands that meet one or more of the following criteria may be identified as locally significant wetlands:

(a) The wetland represents a locally unique native plant community: wetland is or contains the only representative of a particular native wetland plant community in the UGB/UUC, which is only applicable if the entire UGB/UUC is inventoried. To be identified as a LSW, such a wetland must also have been assessed to perform at least one of the following functions at the levels indicated below using OFWAM:

(A) Its wildlife habitat descriptor is either “provides diverse habitat,” or “provides habitat for some wildlife species”; or

(B) Its fish habitat descriptor is either “intact,” or “impacted or degraded”; or

(D) Its hydrologic control function descriptor is either “intact,” or “impacted or degraded.”

(b) The wetland is publicly owned and determined to “have educational uses” using OFWAM, and such use by a school or organization is documented for that site.

History

Statutory/Other Authority: ORS 273.360
Statutes/Other Implemented: ORS 197.299
LB 7-1996, f. 12-13-96, cert. ef. 1-1-97

Or. Admin. R. 141-086-0360 Purpose

Pursuant to ORS 197.279, 196.672 and 196.674, these rules establish procedures and criteria for identifying wetlands of statewide significance, called “outstanding state wetlands.” These rules complement the rules for identifying locally significant wetlands (OAR 141-086-0300 through 141-086-0350).

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 197.279(3), 196.672 & 196.674
LB 4-1997, f. 4-15-97, cert. ef. 5-1-97

Or. Admin. R. 141-086-0370 Definitions

(1) “Classification” means the designation of wetlands into hydrogeomorphic classes and subclasses. For example, “riverine” would be one class of wetlands.

(2) “Director” means the Director of the Division of State Lands or the Director’s designee.

(3) “Division” means the Division of State Lands.

(4) “Functional Assessment” means the process by which the capacity of a wetland to perform a certain function or group of functions is measured. Such functions would include but are not limited to: surface water storage, sediment removal, and maintenance of characteristic plant communities.

(5) The “Hydrogeomorphic Method” or “HGM” is a scientific method of wetland classification and functional assessment based on a wetland’s location in the landscape and the sources and duration of water flow. The HGM approach identifies the wetland classes present in each region, defines the functions that each class of wetlands performs, and establishes reference sites to define the range of functioning of each wetland class.

(6) “Outstanding State Wetlands” or “OSWs” are reference standard wetlands identified within each Oregon region.

(7) “Reference Standard Wetlands” are one component of an HGM and, for the purposes of these rules, are those sites that best exhibit the highest sustainable level of functional capacity for the functions performed by the regional wetland class or subclass.

(8) “Region” means an ecosystem-based geographical subdivision of the state, such as the Level III and IV Ecoregions of Oregon (e.g., the Willamette Valley) mapped by the U. S. Environmental Protection Agency.

(9) “Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 197.279(3), 196.672 & 196.674
LB 4-1997, f. 4-15-97, cert. ef. 5-1-97

Or. Admin. R. 141-086-0380 Applicability

(1) These rules set forth the criteria and procedures by which the Division will identify outstanding state wetlands and provide the information to local governments. Due to the state’s interest in OSWs and the expertise required for their identification, the Division is responsible for applying these rules.

(2) The Land Conservation and Development Commission will determine any local land use planning responsibilities regarding OSWs identified by the Division.

(3) OSWs identified according to these rules become part of the Statewide Wetlands Inventory.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 197.279(3), 196.672 & 196.674
LB 4-1997, f. 4-15-97, cert. ef. 5-1-97

Or. Admin. R. 141-086-0390 Criteria and Procedures

(1) A wetland shall be identified as an OSW if it is judged by the Division to be a reference standard wetland as defined in sections 141-086-0370(7).

(2) The Division may convene one or more technical panel(s) of wetland scientists with expertise in wetland functions, wetland classification, and/or regional wetland types in Oregon. The technical panel(s) will assist the Division in developing the hydrogeomorphic classification and functional assessment method (HGM) for Oregon, identifying the regional wetland classes and subclasses, primary functions, and reference standard wetlands. The Oregon HGM will be developed in stages, region by region, as resources allow. The Oregon HGM will be developed in cooperation with the Army Corps of Engineers, Environmental Protection Agency, Natural Resources Conservation Service, state resource agencies, and others as appropriate, and will incorporate protocols developed by the U.S. Army Corps of Engineers Waterways Experiment Station (for example, Technical Report WRP-DE-9, R. D. Smith et al., 1995).

(3) Prior to designating a reference standard wetland as an OSW, the Division shall:

(a) Identify and map site boundaries;

(b) Develop management recommendations to conserve and protect the documented wetland functions of the site;

(d) Provide public notice on the draft findings to the local government, affected landowners and land managers and other interested parties, and provide a 45-day public comment period;

(e) Hold at least one public meeting within the area of the proposed OSW(s) during the comment period; and

(f) Finalize the findings and site boundaries after consideration of public comment.

(4) The Division shall provide all maps, criteria findings and supporting information regarding an identified OSW to the appropriate local government(s) for their use in land use planning activities.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 197.279(3), 196.672 & 196.674
LB 4-1997, f. 4-15-97, cert. ef. 5-1-97

Division 87 HYDROELECTRIC PROJECTS

Or. Admin. R. 141-087-0001 Purpose

The purpose of these rules is to provide a uniform procedure for obtaining hydroelectric power leases and easements on lands managed by the State Land Board.

History

Statutory/Other Authority: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0005 Definitions

(1) “Board” — State Land Board.

(2) “Division” — Division of State Lands.

(3) “Lands within jurisdiction of the Board” — Lands which have been placed under the Board’s jurisdiction by the Constitution of Oregon or the Oregon state legislature. These lands include, but are not limited to, Common School Fund lands and submerged and submersible lands.

(4) “Resource” — All values of the land including, but not limited to, timber, grazing, recreational, scenic and hydroelectric power generation.

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0010 Application of Rules

These rules shall apply to all hydroelectric projects located on lands within the Board’s jurisdiction which have not received final approval for all state, local, and federal permits and licenses. The approval standards of these rules shall not apply at any time to projects which are in existence or have received all state, local and federal approval on or before December 31, 1985. However, a lease shall be issued and the fee requirements imposed on all such projects at the time of renewal of the project license or exemption by the Federal Energy Regulatory Commission (FERC), or within 50 years after the date of commencing power production, whichever occurs first.

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0015 Division Application Review

The Division shall review the following applications to determine if the proposed hydroelectric project is to be constructed on lands within the jurisdiction of the Board:

(1) Applications with the Federal Energy Regulatory Commission (FERC) for a preliminary permit or license to operate a hydroelectric project or for an exemption from the FERC licensing process.

(2) Applications for a right to appropriate water for hydroelectric power under ORS Chapter 537.

(3) Applications for a preliminary permit or a hydroelectric license under ORS Chapter 543.

(4) Applications for local land use approval for a proposed hydroelectric project.

(5) Applications for a site certificate from the Energy Facility Siting Council (EFSC) under ORS Chapter 469.

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0020 Division Notice to Applicants

When the Division determines that any of the applications described in OAR 141-087-0015 are for projects to be located on land within the jurisdiction of the Board, the Division shall notify the applicant and the agency to which the application has been made, advising:

(1) That the proposed project is on lands within the jurisdiction of the Board.

(2) That prior to commencing construction of the proposed project, the applicants must obtain a lease or easement from the Board.

(3) The Board has determined that the location of a hydroelectric project in any of the following locations or circumstances would not be consistent with the conservation of the resource under sound techniques of land management and thus, a lease or easement shall not be granted if the proposed project:

(a) Is located in any of the following areas:

(A) National parks;

(B) National monuments;

(D) State wildlife refuges;

(E) Bureau of Land Management areas of critical environmental concern established under Public Law 94-579;

(F) Federal research natural areas established under 43 CFR 2070 or 36 CFR 200;

(G) Scenic waterways designated under ORS 390.805 to 390.925;

(H) Wild and scenic rivers established under Public Law 90-542;

(I) Wilderness areas established under Public Law 88.577;

(J) Estuarine sanctuaries established under Public Law 92-583;

(K) State dedicated natural heritage areas established under ORS 273.563 and 273.591;

(L) Waterways in which anadromous salmon and steelhead or their habitat are located, except when a developer proposes to modify an existing facility or existing project in such a manner which will restore, enhance, or improve anadromous fish populations within the river system.

(M) Any other categories of land identified as automatically unacceptable as of the effective date of this rule by the Water Resources Commission or, if the project is in excess of 25 megawatts, identified by EFSC.

(b) Includes land on which a species of wildlife has been identified under the Endangered Species Act as endangered and in the judgment of the Department of Fish and Wildlife, the project is inconsistent with the protection of the species;

(c) Involves land for which a timely determination has been made by the Oregon Department of Fish and Wildlife or other state agencies that the project may result in a wild game fish population or the fishery it provides, being converted to a hatchery dependent resource;

(d) Is located on land which in the judgment of the Division, the impacts of the project on the resource are of such a serious nature that the land could no longer be managed in a manner consistent with the conservation of the resource under sound techniques of land management.

(4) A lease will not be granted if a project is located on lands where it is clear that the economic return from the proposed project will not result in the greatest benefit to the people of the State of Oregon. This may include submerged and submersible lands where the Land Board has existing leases or Land Board ownership on adjacent properties the value of which for mineral extraction, timber, grazing or other development may be affected by the issuance of a lease.

(5) The applicant and affected agency will be notified by the Division if any of the above conditions exist. Within 30 days of issuance of the notice, the applicant may request the Board to review the Division’s decision. In addition, the applicant may request Board review of the determination of the Board’s jurisdiction over the land within 30 days of issuance of the notice advising the applicant that the land is within the jurisdiction of the Board.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0030 Division Review of Application for Lease

(1) The Division shall conduct its review of a lease application after receiving all of the following information:

(a) A copy of a water appropriations permit issued by the Water Resources Commission under ORS Chapter 537 or proposed findings on the permit approved by the Director of the Water Resources Department on all issues relevant to the Land Board’s determination;

(b) If the applicant does not qualify for a municipal exemption under ORS 543.150, a copy of the hydroelectric permit issued by the Water Resources Commission under ORS Chapter 543 or proposed findings on the permit approved by the Director on all issues relevant to the Land Board determination;

(c) If the proposed project exceeds 25 megawatts, a copy of a site certificate from the Energy Facility Siting Council or proposed findings of the Council on the site certificate on all issues relevant to the Land Board’s determination;

(d) A copy of the application for a hydroelectric license or exemption from FERC or, if issued, a copy of the license or exemption;

(e) Filings of the Oregon Department of Fish and Wildlife submitted in administrative proceedings before FERC, EFSC, or the Water Resources Commission;

(f) If the project is subject to any local permit requirements, a copy of the permit;

(g) A copy of the Department of Environmental Quality’s order on certification of a project under section 401 of the Federal Water Pollution Control Act, Public Law 92-500, as amended, proposed findings submitted as a party to EFSC or WRC review or proposed findings approved by the Environmental Quality Commission on issues relevant to the Land Board determination;

(h) Any other information related to the Board criteria for approval necessary for the Division to conduct its review of the proposed project.

(2) The Board, in its discretion, may take action on a lease application prior to receiving all of the above information, if it determines it is in the public interest to do so.

(3) If the Board approves a lease prior to the applicant obtaining all appropriate state, local and federal approvals or permits, the Board shall condition the lease upon obtaining all such approvals.

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0040 Land Board Criteria for Decision on Request for Lease

The Land Board shall base its decision on a request for a lease or easement for the development of a hydroelectric project, on lands within the jurisdiction of the Board, on the following criteria:

(1) The proposed lease should result in the lands being managed in a manner which will confer the greatest benefit on the people of the State of Oregon. In determining whether the project will confer the greatest benefit on the people of the state, the Board may consider appropriate factors including:

(a) The energy needs of the region;

(b) The economic impacts of the project;

(2) In determining the energy needs of the region, the Board may consider all information relating to this issue, including, but not limited to:

(a) If the project is in excess of 25 megawatts, the findings of EFSC relating to energy needs in its action on a site certificate or proposed findings on the site certificate approved by EFSC;

(b) The Oregon Department of Energy’s Biennial Energy Plan;

(3) In considering the economic impacts of the project, the Board shall find that the proposed lease will enhance the Common School Fund and that the state is receiving just compensation for the use of the lands. In making this determination, the Board may consider all information relating to economic impacts, including, but not limited to:

(a) Impacts on existing Land Board leases on submerged and submersible lands;

(b) Impacts on grazing revenues on affected Common School lands;

(d) Impacts on mineral values on state owned lands affected by the project;

(e) The proposed lease fee recommended by the Director pursuant to OAR 141-087-0050.

(4) In considering the impacts of the project on the natural resources of the area, the Board shall find that the issuance of the lease would be consistent with the criteria in OAR 141-087-0020(3) and that the proposed lease shall result in the lands being managed in a manner which will be consistent with the conservation of the resource under sound techniques of land management. In determining whether the use of the land will be consistent with the conservation of the resource, the Board may give due consideration to the findings and conclusions of other state and local agencies as listed below with respect to issues within those agencies expertise, specifically:

(a) The findings of the Water Resources Commission or the Director of the Water Resources Department in the review of the applicant’s request for a water appropriation permit or a hydroelectric license;

(b) The findings of the Department of Environmental Quality in the review of the proposed project under Section 401 of the Clean Water Act;

(c) The findings of the Oregon Department of Fish and Wildlife, in carrying out its responsibilities under state and federal law, related to evaluation of the project;

(d) The findings of EFSC under its siting authority when the project exceeds 25 megawatts;

(e) The comments of any other state, federal or local agencies or interested persons who are affected by the proposed project.

(5) If any provisions of an acknowledged comprehensive plan and land use regulation are applicable, the approval of the lease or easement should be compatible with such provisions. Where a comprehensive plan does not regulate the use, the Board may make findings on applicable statewide planning goals.

(6) Conditions must be available for inclusion in the lease or easement which will assure the safety of the public and the preservation of economic, scenic and recreational values of the lands pursuant to ORS 274.040(4).

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 2-1986, f. & ef. 2-19-86

Or. Admin. R. 141-087-0050 Fees for Hydroelectric Projects on State-Owned Submerged and Submersible Lands

(1) There shall be a fee for leases or easements granted by the State Land Board pursuant to OAR 141-087-0001 through 141-087-0040. The fee shall be determined with the object of obtaining the greatest benefit for the people of the State of Oregon consistent with the conservation of the resource under the sound techniques of land management.

(2) The fee shall be established as follows:

(a) When an application for a lease or easement is submitted, the director shall first attempt to negotiate a fee with the applicant;

(b) If the director and applicant are unable to negotiate a fee, the base fee shall be six percent of the per acre value of the adjacent upland for use as a hydroelectric facility or other rural industrial use. The base fee shall be adjusted annually to reflect the amount of increase or decrease of the U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers Price Index for Portland (Base: 1967-100);

(A) The director shall obtain an appraisal at the Division’s expense;

(B) If the applicant rejects the director’s appraisal, the applicant and director shall agree upon a second, independent appraiser, whose appraisal shall be used to calculate the fee. The cost of the appraisal shall be shared equally by the division and the applicant.

(3) When the application is complete the director shall submit the application to the State Land Board for review.

(a) For new projects the State Land Board may approve or deny an application pursuant to OAR 141-087-0040, but if the application is approved, the fee shall be the amount determined under section (2) of this rule;

(b) For existing projects that are exempt from the approval standards of these rules pursuant to OAR 141-087-0010, the fee shall be the amount determined under section (2) of this rule, and shall be retroactive to the date of application.

History

Statutory/Other Authority: ORS 273 & 274
Statutes/Other Implemented: ORS 273 & 274
LB 6-1986, f. & ef. 5-20-86

Division 88 RULES GOVERNING THE ESTABLISHMENT OF RESTRICTIONS ON THE PUBLIC RECREATIONAL USE OF STATE-OWNED LAND

Or. Admin. R. 141-088-0000 Purpose and Applicability

These rules:

(1) Govern the establishment of restrictions on the public recreational use of state-owned Trust and Non-Trust Land managed by the Department of State Lands (Department).

(2) Are in addition to those contained in OAR 141- 082 (Rules Governing the Management of, and Issuing of Leases, Licenses, Temporary Use Permits and Registrations for Structures on, and Uses of State-Owned Submerged and Submersible Land) which govern the imposition of restrictions on the use of, and closures of state-owned submerged and submersible land for activities subject to authorization by the Department.

(3) Identify areas of state-owned land managed by the Department for which restrictions on public recreational use have been established by rule.

(4) Do not govern the establishment of restrictions on, or closure to the public recreational use of state-owned land administered by the Department of State Lands within the South Slough National Estuarine Research Reserve.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 5-2009, f. & cert. ef. 6-23-09
DSL 2-2004, f. & cert. ef. 6-11-04
DSL 9-1998, f. & cert. ef. 10-15-98

Or. Admin. R. 141-088-0002 Definitions

(1) “Asset Management Plan” is the plan adopted by the State Land Board that provides the policy direction and management principles to guide both the short and long-term management by the Department of the Common School Fund’s real estate assets.

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

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

(4) “Emergency” means a human created or natural event or circumstance that causes or threatens:

(a) Human life, health or safety;

(b) Loss of, or damage to property;

(d) Damage to the environment.

(5) “Firearm”, as defined in ORS 166.210(3), means a weapon, by whatever name known, which is designed to expel a projectile by the action of powder.

(6) “Limited Duration” means a public recreational use of state-owned land that does not exceed 30-calendar days in the same location.

(7) “Non-Trust Land” is land owned or managed by the Department other than Trust Land. Examples of Non-Trust Land include state-owned Swamp Land, and state-owned submerged and submersible land (land below ordinary high water) under navigable and tidally influenced waterways.

(8) “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, or Indian Tribe.

(9) “Public Recreational Use” or “Public Recreational Uses” are those recreational activities that a person may conduct on state-owned land managed by the Department without having to obtain a prior authorization from the Department as required by these or other administrative rules adopted by the State Land Board. Such uses include, but are not limited to, limited duration hunting, fishing, sightseeing, wildlife observation, hiking, boating, swimming, camping and picnicking.

(10) “Removal” means a removal as defined in ORS 465.200.

(11) “Remedial Action” means a remedial action as defined in ORS 465.200.

(12) “State Land” or “State-Owned Land” is land owned or managed by the Department or its agents and includes Trust and Non-Trust Land.

(13) “Submerged Land” means land lying below the line of ordinary low water of all title navigable and tidally influenced waters within the boundaries of the State of Oregon.

(14) “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 waters within the boundaries of the State of Oregon.

(15) “Trust Land” or “Constitutional Land” is all land granted to the state for the use of schools upon its admission into the Union, or obtained by the state as the result of an exchange of Trust Land, or obtained in lieu of originally granted Trust Land, or purchased with trust funds, or obtained through foreclosure of loans using trust funds.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0004 General Provisions

(1) All Trust and Non-Trust Land under the jurisdiction of the State Land Board and the Department is open and available for public recreational use provided that such use:

(a) Is legal under local, state and federal law;

(b) Is allowed under the Department’s Asset Management Plan;

(c) Does not, due to the nature or duration of the use, unnecessarily prevent other persons from using the same state-owned land; and

(d) Does not, as determined by the State Land Board or the Department:

(A) Substantially interfere with the use of land by persons holding a written authorization from the Department to use the subject site(s), parcel(s) or area(s);

(B) Pose a significant risk of harm or damage to the natural, cultural and archaeological resources of the land or to the public; or

(2) Any person may request that the Department impose restrictions on public recreational use of state-owned land, or close state-owned land managed by the Department to public recreational use. A request must be in writing and must clearly state the reasons such a restriction or closure is necessary.

(3) The Department may also identify state-owned land on which it believes public recreational use should be restricted or that should be closed to public recreational use.

(4) Restrictions or closures by the State Land Board or the Director will be:

(a) Based on a determination that the action is necessary to:

(A) Protect human life, health or safety;

(B) Prevent loss of, or damage to property;

(D) Prevent damage to the environment;

(F) Fulfill an objective of an area management plan developed by the Department; or

(G) Meet other land management objectives or terms of any use authorization granted by the Department.

(b) As limited in area, duration and scope as necessary to address the identified need for the restriction or closure.

(5) All restrictions or closures will be promulgated by the State Land Board except that the Director may impose a restriction or closure when the Director determines that:

(a) The restriction or closure is necessary to address an emergency; or

(b) The restriction or closure is necessary to facilitate or protect a removal or remedial actions undertaken by or pursuant to an order issued by the Oregon Department of Environmental Quality (DEQ) or the United States Environmental Protection Agency (EPA).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0005 Restriction or Closure Request and Review Process

(1) Upon receipt of a request to impose restrictions on, or close state-owned land to public recreational use, the Department will review the request to evaluate the need for the restriction(s) or closure.

(2) As a part of its review, the Department may:

(a) Determine if feasible alternative approaches exist to address the problem(s) for which the restrictions or closure is requested; and

(b) Contact, persons or groups likely to be impacted by the proposed restrictions or closure including, but not limited to, law enforcement officials, users of the subject site, area or parcel, and adjacent landowners.

(3) Following its review of the request, the Department will make a recommendation to the Director concerning whether to place the requested restrictions on the public recreational use of, or to close to such uses the state-owned land.

(4) Upon receipt of the Department’s recommendation, the Director will determine whether the restriction or closure must be promulgated by the State Land Board pursuant to OAR 141-088-0006, or may be imposed by the Director pursuant to either OAR 141-088-0007 or 141-088-0008.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0006 Restrictions or Closures Adopted by the State Land Board

(1) All restrictions or closures by the State Land Board will be promulgated as rules in accordance with ORS 183.310 to 183.410.

(2) The State Land Board will adopt the proposed restriction or closure to public recreational use if the Land Board determines:

(a) That the restriction or closure is necessary to:

(A) Protect human life, health or safety;

(B) Prevent loss of, or damage to property;

(D) Prevent damage to the environment;

(E) Facilitate or protect a removal or remedial action undertaken by or pursuant to an order issued by the Oregon Department of Environmental Quality (DEQ) or the United States Environmental Protection Agency (EPA) in pursuit of identifying and remediating contaminated soil or sediments on state-owned land;

(F) Fulfill an objective of an area management plan developed by the Department; or

(G) Meet other land management objectives or terms of a use authorization; and

(b) That there is no feasible alternative to accomplish that objective without imposition of a restriction or closure.

(3) Restrictions or closures adopted by the State Land Board will be as limited in area, duration and scope as necessary to address the identified need for the restriction or closure.

(4) If the State Land Board adopts a restriction or closure by rule the Department will:

(a) Notify affected local, state and federal government agencies and tribal governments, as well as other interested persons or groups that might be affected by the imposition of restrictions or a closure, or that have indicated that they want to be notified of such actions; and

(b) Post a notice of such proposed public use restrictions or closure at least four weeks before the time that the restrictions or closure is to take effect:

(A) One time in the Public Notices Section of The Oregonian and, if the Director deems appropriate, in another newspaper serving the general area in which the proposed restriction or closure is to occur; and

(B) On the Department’s website upon imposition of the restrictions or closure at http://www.oregon.gov/DSL

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0007 Restrictions or Closures Imposed by the Director to Address an Emergency

(1) The Director may impose a restriction or closure in the event s/he determines that the restriction or closure is necessary to address an emergency.

(2) Restrictions or closures imposed by the Director to address an emergency will be as limited in area, duration and scope as necessary to address the identified need for the restriction or closure.

(3) If the Director imposes a restriction or closure, the Department will:

(a) Notify affected local, state and federal government agencies and tribal governments, as well as other interested persons or groups that the Department believes might be affected by the imposition of restrictions or a closure, or that have indicated that they want to be notified of such actions; and

(b) Post a notice of such proposed public use restrictions or closure:

(A) One time in the Public Notices Section of The Oregonian and, if the Director deems appropriate, in another newspaper serving the general area of the subject restriction or closure within two weeks after the restrictions or closure take effect; and

(B) On the Department’s website upon imposition of the restrictions or closure at http://www.oregon.gov/DSL

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0008 Restrictions or Closures Imposed by the Director to Facilitate or Protect Removal or Remedial Actions

(1) 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 DEQ or EPA.

(2) Restrictions or closures imposed by the Director will be as limited in area, duration and scope as necessary to address the identified need for the restriction or closure.

(3) Before imposing a restriction or closure, the Department will provide a 30- calendar-day public comment period on the proposed restriction or closure. An affected party may request a public meeting with agency staff to be held during this 30-day period to discuss the proposed action.

(4) Notice of this public comment period and the opportunity to request a public meeting with agency staff will be:

(a) Sent to affected local, state and federal government agencies and tribal governments, as well as other interested persons that have indicated that they want to be notified of such actions; and

(b) Posted:

(A) One time in the Public Notices Section of The Oregonian and, if the Director deems appropriate, in another newspaper serving the general area one week before the start of the public comment period; and

(B) On the Department’s website upon imposition of the restrictions or closure at http://www.oregon.gov/DSL

(5) A restriction or closure imposed by the Director will not take effect until a date to be determined by the Director which must be at least four weeks following posting of a notice of the restriction or closure.

(6) If the Director imposes a restriction or closure the Department will:

(a) Notify affected local, state and federal government agencies and tribal governments, as well as other interested persons that have indicated that they want to be notified of such actions; and

(b) Post a notice of such proposed public use restrictions or closure at least four weeks before the time that the restriction or closure is to take effect:

(A) One time in the Public Notices Section of The Oregonian and, if the Director deems appropriate, in another newspaper serving the general area before the start of the restrictions or closure is to take effect; and

(B) On the Department’s website at http://www.oregon.gov/DSL

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0009 Unauthorized Uses and Penalties

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

(2) In addition to any other penalties provided or permitted by law, the Department may pursue whatever remedies are available under law to ensure that any use that is in violation with these rules is either brought into compliance with the requirements of these rules or other applicable law, or ceased or removed.

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

(4) The Director will give written notice of a civil penalty incurred under OAR 141-088-0009(3) 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 or this rule involved;

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

(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.

(5) The person incurring the penalty may request a hearing within 20 calendar days of the date of service of the notice provided in OAR 141-122-0130(3) or 141-123-0120(3). Such 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.

(6) In imposing a penalty under OAR 141-088-0009 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 regarding other trespasses on state-owned land manager by the Department;

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

(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 141-088-0009 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 141-088-0009, interest will accrue at the maximum rate allowed by law from the date first due.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 7-2020, minor correction filed 05/12/2020, effective 05/12/2020
DSL 5-2009, f. & cert. ef. 6-23-09

Or. Admin. R. 141-088-0010 Restrictions for the State-Owned Property at Dibblee Point (Columbia River)

All state-owned land that is under the jurisdiction of the Department in the area known as Dibblee Point or Slaughters Bar, between Columbia River Mile 64.0 and Columbia River Mile 66.0, lying between the Burlington Northern Railroad and the left bank of the Columbia River, west of the Longview Rainier Bridge, in Sections 1 and 12, Township 7 North, Range 3 West, and Sections 7 and 8, Township 7 North, Range 2 West, Willamette Meridian, in Columbia County, Oregon, is closed to all uses between 10 p.m. and 5 a.m.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04
Reverted to LB 3-1989, f. & cert. ef. 5-18-89
DSL 5-1998(Temp), f. & cert. ef. 5-4-98 thru 10-28-98
LB 3-1989, f. & cert. ef. 5-18-89
LB 4-1988(Temp), f. & cert. ef. 11-7-88

Or. Admin. R. 141-088-0020 Restrictions for the State-Owned Banks of the McKenzie River Bar

All state-owned land that is under the jurisdiction of the Department between the line of ordinary high water and line of ordinary low water along the north bank of the McKenzie River across from Armitage State Park, between River Mile 6.5 and River Mile 7.2, located in Sections 9 and 10, Township 17 South, Range 3 West, Willamette Meridian, in Lane County, Oregon, is closed to overnight camping and motor vehicles, except watercraft, between 10 p.m. and 5 a.m.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04
LB 1-1992, f. & cert. ef. 3-9-92
LB 9-1991(Temp), f. 9-13-91, cert. ef. 11-1-91

Or. Admin. R. 141-088-0035 Restrictions for the State-Owned Banks of the Sandy River

All state-owned land that is under the jurisdiction of the Department that is between the line of ordinary high water and the line of ordinary low water and on river islands on the Sandy River from River Mile 0.0 to 37.5 is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) Open fires at any time beginning May 1 and ending November 1 of every year.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0036 Restrictions for State-Owned Property at the Sandy River Delta in Multnomah County

(1) All state-owned land that is under the jurisdiction of the Department, including state-owned lands between the line of ordinary high water and the line of ordinary low water, and any uplands of current or former islands in the Sandy River Delta from River Mile 0.0 to 2.5, or from the mouth of the Sandy River to the I-84 bridge crossing, including the Columbia River Side Channel, is closed to:

(a) Any, and all, use of motorized vehicles, including all-terrain vehicles.

(b) Any, and all, discharge of firearms.

(2)(a) Excepted from the restriction in (1)(a) are any motorized vehicle use

(A) By government personnel or their agents on official business, including emergency responders or search and rescue;

(B) Authorized by the Department in advance and in writing; and

(b) Excepted from the restriction in (1)(b) are waterfowl hunters on foot during authorized waterfowl hunting season and in possession of a legal hunting license.

(3) Any person who commits any criminal conduct on state lands described under (1), or violates any use restriction imposed by this rule, may be prohibited from entering or using state lands that are under management by the Department at the Sandy River Delta.

(a) The Director shall issue a written notice that explains the extent and duration of the prohibition.

(b) The person subject to the prohibition may appeal the decision and request a contested case hearing pursuant to ORS 183.413 through 183.470, by submitting a written request within 20 calendar days of the date of service of the notice.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: Oregon Constitution Article VIII, Section 5, ORS 273.171 & ORS 274.025
DSL 1-2024, adopt filed 03/01/2024, effective 04/01/2024

Or. Admin. R. 141-088-0040 Restrictions for the State-Owned Banks of the Columbia River in the Vicinity of Dodson and Warrendale

All state-owned land that is under the jurisdiction of the Department in the vicinity of Dodson to Warrendale that is between the line of ordinary high water and the line of ordinary low water on the Columbia River from River Mile 139.5 to 142.5 is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) Open fires at any time beginning May 1 and ending November 1 of every year.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0050 Restrictions for the State-Owned Banks of the Chetco River

All state-owned land that is under the jurisdiction of the Department that is between the line of ordinary high water and the line of ordinary low water on the Chetco River from the Highway 101 Bridge to River Mile 11 (about one mile upstream from the mouth of Elk Creek) is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) Open fires at any time beginning May 1 and ending November 1 of every year, unless a longer period is ordered by the Coos Forest Protective Association.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0055 Restrictions on Use of Motorized Vehicles in the State-Owned Bed and Banks of the Chetco River

(1) All state-owned land that is under the jurisdiction of the Department that is below the line of ordinary high water on the Chetco River from the Highway 101 Bridge to River Mile 11 (about one mile upstream from the mouth of Elk Creek) is closed to any and all use by motor vehicles within the wetted channel of the main stem of the river. Excepted from the closure are Government-owned vehicles on official business, motor or non-motorized boats, vehicles used the in the launching or the retrieving of boats, vehicles operating under an authorization issued by the Department, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) For the purposes of this rule, “wetted channel of the main stem” means state-owned submerged and/or submersible land of the primary segment of the river that is inundated by the waterway at the time of use.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2013, f. 8-12-13, cert. ef. 9-1-13

Or. Admin. R. 141-088-0060 Restrictions for the State-Owned Banks of the Willamette River in the Vicinity of Wheatland Bar Island and Willamette Mission State Park and Adjacent Upland

All state-owned land that is under the jurisdiction of the Department that is between the line of ordinary high water and the line of ordinary low water on the Willamette River, and all state-owned upland that is managed by the Department that is also in the vicinity of, or that comprises Wheatland Island or Willamette Mission State Park is closed to:

(1) All uses between 10 PM and 5 AM throughout the year,

(2) Open fires at any time beginning May 1 and ending November 1 of every year, and

(3) All-terrain vehicles or other motorized vehicle uses except for those involved in the loading or unloading of recreational watercraft and parking during allowable use periods (i.e, 5 A.M to 10 P.M.).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0070 Restrictions for the State-Owned Bed and Banks of the Willamette River in the Vicinity of the Former McCormick-Baxter Plant

All state-owned land that is under the jurisdiction of the Department that is on the north side of the Willamette River at about River Mile 7 and fronting and abutting the site of the former McCormick-Baxter Plant, the Burlington Northern Bridge, and Willamette Cove as described in easement EA-31530 is temporarily closed to all public uses during the construction period while a sand cap is being placed over contaminated sediments.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0080 Restrictions for the State-Owned Banks of the Columbia River in the Vicinity of the Gary Island

All state-owned land that is under the jurisdiction of the Department that is between the line of ordinary high water and the line of ordinary low water on the south bank of the Columbia River in the vicinity of Gary Island between River Mile 123.5 and 124.5 is closed to any use without prior written authorization from the Department.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0090 Closure of Sand Lake Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Sand Lake estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are Government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide stage of 7.5 feet (Mean Lower Low Water Datum). The Head of Tide in the Sand Lake estuary extends to the upper limit of the lake. (Sections 19, 20, 29, 30, 31 and 32 of Township 3 South, Range 10 West, Willamette Meridian.)

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0100 Closure of Siltcoos River Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Siltcoos River estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are Government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide state of about 6.5 feet (Mean Lower Low Water Datum). The location of Head of Tide in the Siltcoos River estuary is approximately River Mile 3, at the Siltcoos Lake Outlet (Sections 32, 33, and 34 of Township 19 South, Range 12 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0110 Closure of Tenmile Creek Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Tenmile Creek estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are Government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide stage of about 6.5 feet (Mean Lower Low Water Datum). The location of Head of Tide in the Tenmile Creek estuary is approximately River mile1.1, at the Tenmile Lake Outlet (Sections 22, 23, and 14 of Township 23 South, Range 13 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0120 Closure of Tahkenitch Creek Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Tahkenitch Creek estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are Government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide stage of about 6.5 feet (Mean Lower Low Water Datum). The location of Head of Tide in the Tahkenitch Creek estuary is approximately River Mile 1.2 at the Tahkenitch Creek Outlet (Sections 19 and 20, Township 20 South, Range 12 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0130 Closure of Berry Creek Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Berry Creek estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of the Mean High Tide corresponds to a tide stage of about 6.3 feet (Mean Lower Low Water Datum). The location of Head of Tide on Berry Creek is approximately the same as the line of Mean High Tide on the beach.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0140 Closure of Sutton Creek Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Sutton Creek estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide stage of about 6.5 feet, (Mean Lower Low Water Datum). The location of Head of Tide on Sutton Creek is approximately River mile 0.4 (Section 28, Township 17 South, Range 12 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0150 Closure of Twomile Creek Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Twomile Creek estuary is closed to any and all use by motor vehicles. Excepted from the estuary closure are government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide stage of about 6.3 feet, (Mean Lower Low Water Datum). The location of Head of Tide on Twomile Creek is approximately River Mile 0.6 (Section 13, Township 29 South, Range 14 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0160 Closure of New River, Floras Creek and Fourmile Creek

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within New River and its tributaries, Fourmile Creek and Floras Creek, is closed to any and all use by motor vehicles. Excepted from the closure are government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(a) The elevation of Mean High Tide corresponds to a tide stage of about 6.3 feet (Mean Lower Low Water Datum).

(b) The Head of Tide in New River is approximately River Mile 3.1 (Section 15, Township 30 South, Range 15 West, Willamette Meridian).

(c) The location of Head of Tide in Fourmile Creek is approximately River Mile 0.7 (Section 2, Township 30 South, Range 15 West, Willamette Meridian).

(d) The location of Head of Tide in Floras Creek is approximately River Mile 0.2 (Section 5, Township 31 South, Range 15 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0170 Closure of Euchre Creek Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Euchre Creek estuary is closed to any and all use by motor vehicles. Excepted from the closure are government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of the Mean High Tide corresponds to a tide state of about 6.6 feet, (Mean Lower Low Water Datum). The location of Head of Tide of Euchre Creek is approximately the same as the line of Mean High Tide on the beach.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0180 Closure of Pistol River Estuary

(1) All submerged and submersible land under the jurisdiction of the Department below Head of Tide within the Pistol River estuary is closed to any and all use by motor vehicles. Excepted from the closure are government-owned vehicles on official business, motor or non-motorized boats, vehicles used in the launching of boats at designated launching sites, public and private utility vehicles performing company business, vehicles involved in rescue or emergency activities, and vehicles engaged in repair of fences and placement of bank protection material.

(2) Head of Tide means the inland-most extent of tidal influence as measured by an increase in water surface level at Mean High Tide (Mean Lower Low Water Datum).

(3) The elevation of Mean High Tide corresponds to a tide stage of about 6.3 feet, (Mean Lower Low Water Datum). The location of Head of Tide on Pistol River is approximately River Mile 1.4 (Section 20, Township 38 South, Range 14 West, Willamette Meridian).

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2004, f. & cert. ef. 6-11-04

Or. Admin. R. 141-088-0190 Restrictions for the State-Owned Property at Jones Beach (Columbia River)

All state-owned land that is under the jurisdiction of the Department in the area known as Jones Beach, between Columbia River Mile 46.0 and Columbia River Mile 48.0, lying north of River Front Road, in Sections 33 and 34, Township 8 North, Range 5 West, in Columbia County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) All-terrain vehicles as defined in ORS 801.190–.194 throughout the year. Excepted from these restrictions are Government-owned vehicles on official business, street legal class II all-terrain vehicles during open use hours, public and private vehicles performing company business, vehicles involved in rescue or emergency activities, district authorized persons and landowners inspecting or maintaining levees and fences.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 3-2013, f. 11-12-13 cert. ef. 12-1-13

Or. Admin. R. 141-088-0195 Restrictions for the State-Owned Property at Stevens Road

All state-owned land that is under the jurisdiction of the Department in the area known as the Stevens Road Tract, in Section 11, Township 18 South, Range 12 East, in Deschutes County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) Any and all use by motor vehicles, and

(3) Open fires throughout the year, and

(4) Any and all discharge of firearms.

Excepted from this restriction are government personnel on official business, public and private employees performing company business, vehicles and persons involved in rescue or emergency activities, Department authorized persons and adjacent landowners inspecting or maintaining fences.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15

Or. Admin. R. 141-088-0200 Restrictions for the State-Owned Property on the West Half of Juniper Canyon Parcel

All land west of Juniper Canyon Road that is under the jurisdiction of the Department in the area known as the West Half of Juniper Canyon Parcel, in Section 34, Township 15 South, Range 16 East, in Crook County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) Any and all use by motor vehicles, and

(3) Open fires throughout the year, and

(4) Any and all discharge of firearms.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15

Or. Admin. R. 141-088-0205 Restrictions for the State-Owned Property on the South Redmond Parcel

All state-owned land that is under the jurisdiction of the Department in the area known as the South Redmond Tract, in Sections 32 and 33, Township 15 South, Range 13 East, in Deschutes County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m. throughout the year, and

(2) Open fires throughout the year.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 2-2015, f. 5-6-15, cert. ef. 6-1-15

Or. Admin. R. 141-088-0210 Restrictions for the State-Owned Banks and Islands of the Willamette River within the city of Eugene

All state-owned land that is under the jurisdiction of the Department between the line of ordinary high water and the line of ordinary low water along the Willamette River, including all islands between these areas, between River Mile 178 and River Mile 184, between the Randy Pape Beltline Road Bridge and the Interstate 5 Bridge, located in Sections 18, 29, 30, 32 and 33, Township 17 South, Range 3 West, and Sections 13, 24 and 25, Township 17 South, Range 4 West, Willamette Meridian, in Lane County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m.

(2) The establishment of a campsite at any time. For purposes of this section, “campsite” means any place where any bedding, sleeping bag or other material used for bedding purposes, or any stove is placed, established or maintained for the purpose of maintaining a temporary place to live, whether such a place incorporates the use of any tent, lean-to, shack or any other structure.

(3) Fires at any time.

Excepted from this restriction are Government personnel on official business, public and private employees performing company business, vehicles and persons involved in rescue or emergency activities, and Department authorized persons and adjacent landowners inspecting or maintaining property.

History

Statutory/Other Authority: ORS 183, ORS 273 & ORS 274
Statutes/Other Implemented: ORS 273 & ORS 274
DSL 3-2020, minor correction filed 04/08/2020, effective 04/08/2020
DSL 14-2019, adopt filed 12/13/2019, effective 01/01/2020

Or. Admin. R. 141-088-0220 Restrictions for the State-Owned Banks and Islands of the Lower Willamette River, including the Swan Island Lagoon

All state-owned land that is under the jurisdiction of the Department between the line of ordinary high water and the line of ordinary low water along the Willamette River between River Mile 01 and River Mile 11 , including the Swan Island Lagoon, located in Multnomah County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m.

(3) Fires at any time.

History

Statutory/Other Authority: ORS 183, ORS 273 & ORS 274
Statutes/Other Implemented: ORS 273 & ORS 274
DSL 4-2024, minor correction filed 11/21/2024, effective 11/21/2024
DSL 4-2020, minor correction filed 04/08/2020, effective 04/08/2020
DSL 14-2019, adopt filed 12/13/2019, effective 01/01/2020

Or. Admin. R. 141-088-0230 Restrictions for the State-Owned Property of the Columbia River and Oregon Slough

All state-owned land that is under the jurisdiction of the Department between the line of ordinary high water and the line of ordinary low water along the Columbia River between River Mile 102 to 106 (Hayden Island to the north side and Marine Drive to the south side), and River Mile 120 to 121 (Sandy River Delta), and along the Oregon Slough (North Portland Harbor Channel) between River Mile 0 to 2.5, in Multnomah County, Oregon, is closed to:

(1) All uses between 10 p.m. and 5 a.m.

(2) The establishment of a campsite at any time. For the purposes of this section, “campsite” means any place where bedding, sleeping bag or other material used for bedding purposes, or any stove is placed, established or maintained for the purpose of maintaining a temporary place to live, whether such a place incorporates the use of any tent, lean-to, shack, vessel or any other structure.

(3) Fires at any time.

Note: Excepted from this restriction are Government personnel on official business, public and private employees performing company business, vehicles and persons involved in rescue or emergency activities, Department authorized persons, and adjacent landowners inspecting or maintaining property.

History

Statutory/Other Authority: ORS 183, 273 & 274
Statutes/Other Implemented: ORS 273 & 274
DSL 10-2020, adopt filed 08/12/2020, effective 09/21/2020

Or. Admin. R. 141-088-0240 Restrictions for State-Owned Property on Hayden Island in Multnomah County (Columbia River)

All state-owned submersible land that is under the jurisdiction of the Department between the line of ordinary high water and the line of ordinary low water on the north side of Hayden Island between River Mile 106 and River Mile 107 of the Columbia River, west of the Oregon and Washington I-5 Bridge and east of a wing dam, located in Section 34, Township 2 North, Range 1 East, Willamette meridian, in Multnomah County, Oregon is closed to:

(1) All uses between 10 p.m. and 5 a.m.;

(2) The establishment of a campsite at any time. For purposes of this section, “campsite” means any place where any bedding, sleeping bag or other material used for bedding purposes, or where any stove is placed, established or maintained for the purpose of maintaining a temporary place to live, whether such a place incorporates the use of any tent, lean-to, shack or any other structure; and

(3) Fires at any time.

(4) Excepted from this restriction are Government personnel on official business, public and private employees performing company business, vehicles and persons involved in rescue or emergency activities, and Department authorized persons and adjacent landowners inspecting or maintaining property. This exception does not allow the entities identified or their representatives to establish a campsite on the lands in question.

History

Statutory/Other Authority: ORS 183, ORS 273 & ORS 274
Statutes/Other Implemented: ORS 273 & ORS 274
DSL 2-2022, adopt filed 11/01/2022, effective 11/01/2022
DSL 1-2022, temporary adopt filed 05/13/2022, effective 05/16/2022 through 11/11/2022

Or. Admin. R. 141-088-0250 Periodic Closure for State-Owned Property on Crump Lake in Lake County

(1) All state-owned lands under the jurisdiction of the Oregon Department of State Lands that are located within and around Crump Lake, beginning at the southern boundary of Township 38 South, terminating at Stone Bridge located at 42.354731 degrees North, 119.838867 degrees West, are closed to:

(a) All access by motorized vehicles or pedestrian traffic. Excepted from this restriction are government personnel on official business, vehicles and persons involved in rescue or emergency activities, adjacent landowners inspecting or maintaining fences, and hunters on foot in possession of valid controlled hunt tags for Beatys Butte Wildlife Management Unit, actively engaged in scouting or hunting deer or antelope, or unless otherwise authorized by the department in writing through the Real Property Program.

(b) The collection, removal, defacement, or destruction of any archaeological site, objects, or artifacts, including arrowheads, as defined by ORS 358.905(1)(a), unless otherwise authorized by the Department in writing and consistent with permit issued by the State Historic Preservation Office (SHPO) under ORS 390.235.

(2) The Department will determine closure based on when the water is no longer touching the foundational rocks located along the parallel `line of Tern Island, located at 42.284049 degrees North. The Department has sole discretion to determine when the water level meets the criteria for closure. The closure will be posted on all designated public access routes. Upon posting, the official closure through this rule becomes effective.

(3) The Department will determine when to lift the closure based on when the water level refills and is again touching the foundational rocks described above. The Department has sole discretion to determine when the water level meets the criteria to lift the closure. The Department will provide notice that the closure is lifted by replacing the closure signs with signs confirming access is open. In the absence of signs, the public will assume the closure is in place unless confirmed in writing by the Department.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: Oregon Constitution Article VIII, Section 5, ORS 273.171 & ORS 274.025
DSL 4-2023, adopt filed 11/01/2023, effective 11/01/2023

Division 89 ADMINISTRATIVE RULES GOVERNING THE ISSUANCE AND ENFORCEMENT OF GENERAL AUTHORIZATIONS WITHIN WATERS OF THIS STATE

Or. Admin. R. 141-089-0620 General

(1) Special Headings and Fonts. Where headings, special fonts or double-spacing are used, they are for convenience only and have no substantive effect.

(2) Applicability of OAR 141-085. Unless otherwise specified under OAR 141-089, the provisions of OAR 141-085 apply to General Authorizations (GA).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0625 General Authorizations (GA); Process for Establishing; Standards and Criteria

(1) Waiver of Permit Requirements. An individual removal-fill permit, general removal-fill permit, or DEQ remedial action waiver may not be necessary if a project meets the requirements of a GA. Any person proposing to conduct a project under a GA must comply with the rules in this division.

(2) Establishment. GAs are granted through adoption of administrative rules in accordance with the Administrative Procedure Act (ORS 183.310 through 183.550). A GA may be granted on a statewide or other geographic basis.

(3) Criteria for Granting. The Department may grant a GA based upon a finding that the category of activities of removal-fill:

(a) Are substantially similar in nature;

(b) Would cause only minimal individual and cumulative environmental impacts; and

(4) Department Findings. These GAs in OAR 141-089 are granted pursuant to ORS 196.850 and are based upon the determination that the authorized activities are similar in nature and that when conducted in accordance with these rules, will cause no more than minimal individual and cumulative environmental effects, and will not result in long-term harm to water resources of this state.

(5) Amend or Rescind. The Department may amend or rescind any individual GA, through rulemaking, upon a determination that activities conducted under an individual GA have resulted in or would result in more than minimal adverse effect or long-term harm to the water resources of this state. Any person may request the Department act under this provision. Such a request must include the GA to be rescinded or amended and the reasons for the request.

(6) Review of GAs. The Department will conduct a review of this Division 141-089 every five years from the date of the last OAR 141-089 rule amendment. The review will include public notice and opportunity for public hearing. At the completion of its review, the Department will engage in rulemaking to modify or rescind the Division 141-089 rule if it determines that modification or rescinding is appropriate.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0630 Project Applicability

(1) Applicability. The rules in OAR 141-089 set forth conditions under which a person may, without an individual removal-fill permit, general removal-fill permit, or DEQ remedial action permit waiver from the Department, remove or fill material within waters of this state, as defined in OAR 141-085-0510. The rules in OAR 141-089 do not apply to projects within the following areas:

(a) A State Scenic Waterway, as defined by OAR 141-100-0005(11).

(b Willamette River between river miles 1.9 and 11.8.

(c) An Aquatic Resource of Special Concern as defined in OAR 141-085-0510, unless the project is for habitat improvement purposes.

(2) Thresholds and Best Management Practices (BMPs). BMPs necessary to comply with the general conditions described in OAR 141-089-0650 are not included in the removal-fill volumes for a GA.

(3) Project with More Than Minimal Impacts. The Department may require an individual removal-fill permit, general removal-fill permit, or DEQ remedial action permit waiver for a project that would otherwise be authorized by a GA if the Department determines that the project might cause more than minimal individual or cumulative environmental effects or might result in long-term harm to the water resources of this state. The Department may also require an application for an individual removal-fill permit, general removal-fill permit, or DEQ remedial action waiver if requested to do so by the Oregon Department of Fish and Wildlife (ODFW), the Oregon Department of Environmental Quality (DEQ), or the affected local land use planning department.

(4) Combining Activities. Any GAs may be combined for a single project when the combined activities result in no more than minimal impacts, with the following exceptions: the Non-motorized In-stream Placer Mining in ESH GA (141-089-0820 et seq .) may not be combined with any other GA and the Minimal Disturbance within Essential Salmonid Habitat GA (OAR 141-089-0660, et seq .) may only be combined with the Temporary Impacts to Wetlands and Waterways GA (OAR 141-089-0700, et seq .).

(5) Entire Project. Projects eligible for GAs must rely solely on GAs for authorization except that any GA, excepting the Non-motorized In-stream Placer Mining in ESH GA (141-089-0820 et seq .), may be combined with a Notification for Exempt Voluntary Habitat Restoration Activities as described and conditioned in OAR 141-085-0534. GAs may not be combined with any other form of removal-fill authorization.

(6) Anytime the rules in OAR 141-089 authorize the Department to make a determination that would authorize a GA for a project that deviates from standards otherwise adopted in rule, the Department may, but is never required, to make such a determination when the responsible party demonstrates that the project would cause no more than minimal individual and cumulative environmental impacts and would not result in long-term harm to the water resources of this state.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0635 Fees; Disposition of Fees

(1) Fees. The fee for all General Authorization Notifications is a flat fee as follows:

(a) Effective January 1, 2026 - $450

(b) Effective January 1, 2027 - $499

(d) Effective January 1, 2029 - $604

(e) Effective January 1, 2030 - $660

(f) Fees are due at the time of notification submission. Notifications that do not include the fee will receive an incompleteness determination under OAR 141-089-0640(3).

(2) The following fees apply to a request from the authorization holder to revise or transfer a General Authorization:

(a) Effective January 1, 2026 - $50

(b) Effective January 1, 2027 - $66

(d) Effective January 1, 2029 - $99

(e) Effective January 1, 2030 - $117

(f) The applicant shall pay these fees within 30 calendar days of a Department notice that fees are outstanding. The Department may deny an application if the applicant does not pay the appropriate fees within 30 calendar days of the notice.

(3) Fees Deposited in the statutory Common School Fund. The Department will credit any fee collected under this section to the statutory Common School Fund for use by the Department in administration of ORS 196.600 through 196.905.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 4-2025, amend filed 08/20/2025, effective 01/01/2026
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0640 Project Notification

(1) Project Notification Required. Except as provided in OAR 141-089-0820 to 141-089-0835, a person who wishes to conduct a project (“responsible party”) must submit a complete project notification to the Department at least 30 calendar days before the responsible party wants to start the project. A complete notification is one that provides sufficient information to allow the Department to conclude that the project qualifies for a GA, contains all the information required on the form provided by the Department, all attachments required by that form, and all of the following.

(a) A copy of fish passage plan authorization or no jurisdiction determination from ODFW, except for the following project types:

(A) Minimal Disturbance within ESH: Investigative drilling; scientific measuring devices if not channel spanning; survey for historical resources.

(B) Over-Water Structures Fill and Removal: Derelict piling removal.

(C) Temporary Impacts to Wetlands and Waterways: Temporary impacts to wetlands that are above ordinary high water line or highest measured tide line; temporary placement of spud piles.

(D) Waterway Bank Stabilization Using Bioengineering: Bank terracing, sloping, and reshaping; placement of large wood that is not a channel-spanning sill.

(E) Waterway Habitat Improvement: Engineered log jams.

(F) Wetland Ecosystem Improvement: Vegetation management; microtopography establishment; macrotopography establishment above the 100-year floodplain; removal of materials above ordinary high water line or highest measured tide line; low earthen berms and spillways above the 100-year floodplain; placement of exclusion fencing; maintenance and reconstruction of wetland ecosystem improvement structures above the 100-year floodplain.

(b) Documentation of fish screen approval or other documentation from ODFW for projects including installation, maintenance, or replacement of fish screening structures under the Waterway Habitat Improvement GA (OAR 141-089-0780 , et seq .) and for maintenance and reconstruction of water intake structures under the Minimal Disturbance within ESH GA (OAR 141-089-0660, et seq .).

(c) Any requests for Department determinations allowed under the rules in OAR 141-089 that would authorize a GA for a project that deviates from standards otherwise adopted in rule, including sufficient information to allow the Department to make the determination authorized by rule.

(2) A notification not including items in subsections (1)(a) through (1)(c), when required, will be returned to the responsible party without further review by the Department.

(3) Review of the Notification. Within 30 calendar days of receipt, the Department will review the notification for completeness and eligibility for a GA and make one of the following determinations:

(a) The notification is complete and the project is eligible under one or more individual GAs. For work below the ordinary high water line or highest measured tide line, the determination will include required timing for such work pursuant to OAR 141-089-0650(6). If the Department does not respond within 30 calendar days to a notification, the lack of response shall constitute a determination that the notification is complete and the project is eligible under one or more GAs and that any request for a determination under OAR 141-089-0640(1)(c) is denied;

(b) The notification is incomplete and the responsible party must supply certain specified missing, inaccurate or insufficient information. The responsible party may submit a revised notification within 120 calendar days of the determination under this paragraph, unless instructed by the Department to do otherwise. Submission of a revised notification starts a new 30-day review.

(c) The project is ineligible for certain specified reasons, which could include a conclusion that applicant did not provide sufficient information to allow the Department to conclude the project qualifies for a GA. The responsible party may then either revise the project and submit for reconsideration within 120 days of the notification or apply for any other type of removal-fill authorization for which the project may qualify. Submission of a revised notification commences a new 30-day review period.

(4) Closure of Incomplete or Ineligible Notifications. If a revised notification is not resubmitted within 120 calendar days of an incompleteness or ineligible determination, the Department may administratively close the file. If the Department closes the file under these circumstances, the Department will retain the application fee.

(5) Project Implementation. The responsible party may begin implementing the project subject to a notification upon determination by the Department under OAR 141-089-0640(3)(a) that the project is eligible.

(6) Revisions to a Notification. A responsible party with an unexpired, eligible notification may request, and the Department may approve, revisions to the notification. Upon submittal of a revised notification, the Department will review and make a new eligibility determination using the process described in OAR 141-089-0640(3). Revisions may be subject to additional fish passage or fish screening review by ODFW.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 4-2013, f. 12-13-13, cert. ef. 1-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0645 Expiration of Project Eligibility

Except as provided in OAR 141-089-0820 to 141-089-0835:

(1) A determination under OAR 141-089-0640(3)(a) is valid for three years or until the project is complete, whichever occurs first; and

(2) Requests for renewals or extensions will not be granted.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 4-2013, f. 12-13-13, cert. ef. 1-1-14
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0650 General Conditions

The following conditions apply to all individual GAs, unless otherwise specified in an individual GA or a notification under OAR 141-089-0640(3)(a):

(1) Copy of Approved Determination for Inspection. A copy of the determination under OAR 141-089-0640(3)(a) must be available at the work site whenever the project is being conducted.

(2) Local Government Approval Required Before Beginning Work. Prior to the start of work, the responsible party must obtain local government land use approval, where applicable.

(3) Lower Willamette River Management Plan (LWRMP or Plan; OAR 141-080) Consistency. For projects within the purview of the LWRMP, the project must comply with the LWRMP without the need for a minor exception, unless preapproved by the Director, or major exception as described in the Plan.

(4) Site Access Required. Employees of the Department and all authorized representatives must be permitted access to the project area at all reasonable times for the purpose of inspecting work performed on the project.

(5) Hazards to Recreation, Navigation, and Fishing. The project must be timed so as not to interfere with or create a hazard to recreational and commercial navigation and fishing.

(6) Work Period in Jurisdictional Areas. Project activities below the ordinary high water line or highest measured tide line must be conducted consistent with “Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources”, Oregon Department of Fish and Wildlife, March 2024, or other recommendations provided by ODFW included in a response to a notification. Project activities are prohibited when fish eggs are present at the project site.

(7) Preconstruction Resource Area Fencing or Flagging. Prior to any site grading, the boundaries of any avoided wetlands, waterways, and riparian areas adjacent to the project site must be surrounded by noticeable construction fencing or flagging. There must be no vegetation removal or heavy equipment within marked areas. The marked areas must be maintained during construction of the project and be removed immediately upon project completion.

(8) Erosion Control Methods. The following erosion control measures must be installed at the project site prior to construction and maintained during and after construction to prevent erosion and minimize movement of soil into waters of this state:

(a) All exposed soils must be stabilized during and after construction in order to prevent erosion and sedimentation;

(b) Filter bags, sediment fences, sediment traps or catch basins, leave strips or berms, or other measures must be used to prevent movement of soil into waterways and wetlands;

(c) To prevent erosion, use of compost berms, impervious materials, or other equally effective methods, must be used to protect soil stockpiled during rain events or when the stockpile site is not moved or reshaped for more than 48 hours;

(d) Unless part of the permanent fill, all construction access points through, and staging areas in, riparian and wetland areas must use removable pads or mats to prevent soil compaction. However, in some wetland areas under dry summer conditions, this requirement may be waived upon approval by the Department. At project completion, disturbed areas with soil exposed by construction activities must be stabilized by mulching and native vegetative plantings/seeding. Sterile grass may be used instead of native vegetation for temporary sediment control if native vegetation is unavailable. If soils are to remain exposed for more than seven days after completion of the permitted work, they must be covered with erosion control pads, mats, or similar erosion control devices until vegetative stabilization is installed;

(e) Where vegetation is used for erosion control on slopes steeper than 2:1, tackified seed mulch must be used so the seed does not wash away before germination and rooting;

(f) Dredged or other excavated material must be placed on upland areas having stable slopes and must be prevented from eroding back into waterways and wetlands;

(g) Erosion control measures must be inspected and maintained as necessary to ensure their continued effectiveness until soils become stabilized; and

(h) All erosion control structures must be removed when the project is complete and soils stabilized and vegetated. If necessary, removal of erosion control structures may be performed after expiration of the approved OAR 141-089-0640(3)(a) determination.

(9) Hazardous, Toxic, and Waste Material Handling. Petroleum products, chemicals, fresh cement, sandblasted material and chipped paint, wood treated with leachable preservatives or other deleterious waste materials must not be allowed to enter waters of this state. Machinery refueling is to occur at least 150 feet from waters of this state and confined in a designated area to prevent spillage into waters of this state. Barges must have a containment system to effectively prevent petroleum products or other deleterious material from entering waters of this state. Project-related spills into waters of this state or onto land with a potential to enter waters of this state must be reported to the Oregon Emergency Response System (OERS) at 1-800-452-0311.

(10)Archaeological Resources. If any archaeological resources, artifacts, or human remains are encountered during construction, all construction activity must immediately cease, and the State Historic Preservation Office must be contacted. The responsible party may be contacted by a Tribal representative if it is determined by an affected Tribe that the project could affect Tribal cultural or archeological resources.

(11) Construction Corridor. There must be no removal of vegetation or heavy equipment operating or traversing outside the designated construction corridor or footprint.

(12) Raising or Redirecting Water. The project must not cause water to rise or be redirected and result in damage to structures or property.

(13) Waste Disposal. Old piling, spoil material, and other waste material discarded by the project must be disposed of in an appropriate disposal facility. There must be no temporary storage of piling, spoils, or other waste material below top of bank, in any wetland, Federal Emergency Management Administration designated floodway, or an area historically subject to landslides. For the purposes of this general condition, “spoil material” means any material displaced by construction (e.g., soil, sand, gravel, etc.) and is not intended to be re-incorporated into the project.

(14) Operation of Equipment in the Water .

(a) Heavy equipment may be positioned on or traverse the project area below ordinary high water line or highest measured tide line only when the project area is free of flowing or standing water or if the area is isolated from the waterway and aquatic organism salvage is completed. For the purposes of this general condition, “aquatic organism” means all fish species (including lamprey), freshwater mussels, clams, and crayfish; and any other species as may be identified in a Rescue/Salvage Permit.

(b) All machinery operated below ordinary high water line or highest measured tide line must use biodegradable hydraulic fluids, be steam cleaned and inspected for leaks prior to each use, and be diapered to prevent leakage of fuels, oils, or other fluids below ordinary high water line or highest measured tide line. Any equipment found to be leaking fluids must be immediately removed from and kept above the ordinary high water line or highest measured tide line until repaired.

(15) Fish Passage Required.The project must meet ODFW requirements for fish passage, ORS 509.585.

(16) Temporary Ground Disturbances. Unless otherwise approved by the Department, all temporarily disturbed project areas must be returned to original ground contours and seeded upon completion of ground disturbing actions, and planted with woody vegetation, as appropriate, by March of the year following construction completion.

(17) Nonnative Species. The project will not involve the introduction of nonnative plants other than for temporary soil stabilization. Native seed mixes are preferred. When native seed mix is not available, nonnative seed mix that will hold the soil and not persist may be used if certified free of noxious weeds.

(18) Irrigation. Where power and irrigation water can be made available, irrigation must be provided as necessary until vegetation is established. Irrigation structures must be removed when no longer needed. Invasive weed control must additionally be provided until native vegetation is established.

(19) Invasive Species. Persons must control invasive species and comply with Oregon’s weed laws (ORS Chapters 452, 561, and 570).

(20) DSL May Halt or Modify. DSL retains the authority to temporarily halt or modify the project in case of unforeseen damage to natural resources.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0655 Enforcement

Failure to submit a notification, receive an OAR 141-089-0640(3)(a) determination, or adhere to the terms of any GA when performing a project authorized under OAR 141-089, is a violation of the Removal-Fill Law and may be subject to appropriate enforcement in accordance with ORS chapter 196 and OAR 141-085.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0656 Authorization Decision Appeals

A responsible party whose project is determined by the Department to be ineligible for a GA may appeal the Department’s determination under the same process laid out in OAR 141-085-0575(1), (5) through (10) and 141-085-0580.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0660 Minimal Disturbance within ESH – Purpose

OAR 141-089-0660 to 141-089-0675 set forth the conditions under which a person may, without an individual removal-fill permit, general removal-fill permit, or DEQ remedial action permit waiver from the Department, fill or remove material for a project within waters of this state designated ESH. Temporary impacts to wetlands or waterways associated with a project may be authorized by combining this GA (OAR 141-089-0660, et seq .) with the Temporary Impacts to Wetlands and Waterways GA (OAR 141-089-0700, et seq. ).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 1-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0665 Minimal Disturbance within ESH – Eligibility Requirements

Activities are limited to the five authorized projects described in OAR 141-089-0670 within designated ESH waters for a project.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 2-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0670 Minimal Disturbance within ESH – Authorized Activities

Project activities are limited to the following:

(1) Investigative Drilling and Sampling. Not more than 10 cubic yards of removal and fill for investigative drilling and sampling to gather necessary technical data for designing structures or characterizing sediments.

(2) Scientific Measurement. Not more than four cubic yards of removal and fill at any individual site and, cumulatively, not more than 10 cubic yards of removal and fill for the installation, removal, construction, and maintenance of scientific measurement devices, including staff gages, tide gages, water recording devices, water quality testing and improvement devices, and similar structures, whose purpose is to measure and record scientific data.

(3) Surveys For Historical Resources. Not more than four cubic yards of removal and fill at any individual site and, cumulatively, not more than 10 cubic yards of removal and fill for surveys conducted for historical resources.

(4) Maintenance and Reconstruction of In-Water Structures. Not more than ten cubic yards of removal and fill necessary to maintain or reconstruct the serviceability of existing man-made structures below ordinary high water line or highest measured tide line and not otherwise exempted by OAR 141-085-0530.

(5) Beaver Pond Levelers and Exclusion Devices. Unless otherwise approved by the Department, not more than two cubic yards of removal and fill at any individual site and, cumulatively, not more than five cubic yards of removal and fill, for fence and pipe devices to control beaver pond water elevation or exclude beaver damming activity in or adjacent to culverts.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 3-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0675 Minimal Disturbance within ESH – Project-Specific Conditions

(1) Projects eligible for this GA must adhere to the general conditions in OAR 141-089-0650 and the following project-specific conditions:

(2) Maintenance and reconstruction projects are conditioned as follows:

(a) “Maintenance” has the same meaning as OAR 141-085-0510;

(b) “Reconstruction” has the same meaning as OAR 141-085-0510;

(3) Scientific Measurement. All scientific measurement devices, including all associated structures and fills including anchoring devices, buoys, and cables, must be removed within 30 days after the research is completed. Where necessary, removal of devices may occur after expiration of a determination pursuant to OAR 141-089-0640(3)(a) without further authorization requirement.

(4) Surveys for Historical Resources. All in-stream exploratory excavation must be isolated from the active channel.

(5) Investigative Drilling and Sampling. Existing roads, paths and drilling pads must be used where available. Temporary placement of mats is allowed to provide site access. Temporary mats must be removed upon completion of the project. Drill holes must be refilled in accordance with Oregon Water Resources Department requirements.

(6) Maintenance and Reconstruction of In-Water Structures. Notwithstanding the definition of “reconstruction” in OAR 141-085-0510, reconstruction does not need to be in-kind if the existing structure contains deleterious materials (e.g., concrete, metals, plastics, angular rock) that will be removed and reconstructed with environmentally preferable materials (e.g., untreated wood, gravel, boulders).

(7) Beaver Pond Levelers and Exclusion Devices. At such time that the device(s) are no longer required due to beaver abandonment or removal, or the adverse effects of damming activity have otherwise been resolved, the device(s) must be removed from the waterway. Where necessary, removal of devices may occur after expiration of a determination pursuant to OAR 141-089-0640(3)(a) without further authorization requirement.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 4-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0680 Over-Water Structures Fill and Removal – Purpose

OAR 141-089-0680 to 141-089-0695 set forth the conditions under which a person may, without an individual removal-fill permit, general removal-fill permit, or DEQ remedial action permit waiver from the Department, conduct fill and removal for certain over-water structures and piling in waters of this state. Temporary impacts to wetlands or waterways associated with a project may be authorized by combining this GA (OAR 141-089-0680, et seq. ) with the Temporary Impacts to Wetlands and Waterways GA (OAR 141-089-0700, et seq. ).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 5-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0685 Over-Water Structures Fill and Removal – Eligibility Requirements

Project activities must adhere to the following:

(1) Purpose. Fill and removal for certain over-water structures as further defined in OAR 141-089-0690 and piling or anchors placed for over-water structure support or stabilization, navigational aids (e.g., channel markers, mooring and turning piles or dolphins) without footings or other support structure as approved by the Department.

(2) Limited Placement. Over-water structures, piling, and anchors must be placed:

(a) So as not to form headwalls or other bank treatment structures;

(b) So as not to impede normal water flow into or within wetlands or deflect water in a manner that causes erosion;

(d) In nonwetland waters.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 6-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0690 Over-Water Structures Fill and Removal – Authorized Projects

Project activities are limited to the following. For (1), (2) and (3), docks and structures may be affixed or anchored below or above the ordinary high water line or highest measured tide line:

(1) Fill and removal for residential docks and associated piling or anchors.

(2) Piling or anchor replacement for existing nonresidential docks and other over-water structures.

(3) Seasonal fill and removal for public recreation structures. For the purposes of this section, “public recreation structures” mean non-commercial swimming, viewing and fishing platforms, water slides, water ski ramps or similar structures, and including floating restrooms, deployed for the benefit of the general public. It does not include structures used as boat docks.

(4) Fill and removal for navigational aids (e.g., channel markers, mooring, turning piles or dolphins).

(5) Derelict and abandoned piling removal.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 7-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0695 Over-Water Structures Fill and Removal – Project-Specific Conditions

(1) Project activities must adhere to the general conditions in OAR 141-089-0650 and the following specific conditions, as applicable:

(2) Fill and Removal for Residential Docks and Associated Piling or Anchors. The project is conditioned as follows:

(a) Fill for placement of a new dock, modification of an existing dock, or relocation of an existing dock to a new site must be consistent with ODFW Residential Dock Guidelines, February 2016.

(b) No permanent impact to wetlands is authorized.

(3) Piling or Anchor Replacement for Existing Nonresidential Docks and Other Over-Water Structures. The project is conditioned as follows:

(a) The project must not include any expansion of the existing structure’s over-water footprint;

(b) No more than 10 piling or anchors may be replaced for a project;

(c) The project may include placement or replacement of dock floats. If polystyrene is used, an Encapsulated Foam Certification is required from the OR State Marine Board. The project cannot result in a reduced amount of light penetration though the dock; and

(d) No permanent impact to wetlands is authorized.

(4) Seasonal Fill and Removal for Public Recreation Structures. The project is conditioned as follows:

(a) No placement of new piling is authorized;

(b) Fill of up to four cubic yards total anchor volume is allowed. Anchors must be inert material and may not include solid waste as defined in OAR 340-093-0030;

(c) Recreational structure must be seasonally removed within 30 days after the end of the seasonal use (anchors do not need to be removed); and,

(d) No permanent impact to wetlands is authorized.

(5) Fill and Removal for Navigational Aids. The project is conditioned as follows:

(a) Fill of up to 10 piling or anchors and removal of up to 10 piling or anchors per project is authorized; and

(b) No permanent impact to wetlands is authorized.

(6) Derelict and Abandoned Piling Removal. The project is conditioned as follows:

(a) Removal of up to 50 piling per project is authorized;

(b) Authorization includes the backfilling of native sand or other native material into holes left by piling removal; and

(7) Conditions for Piling or Anchor Replacement and Removal. Projects involving the fill or removal of piling or anchors are conditioned as follows:

(a) Piling Material. Piling is limited to round steel piling 24 inches in diameter or smaller, steel H-piling designated as HP24 (depth of section 24 inches or less) or smaller, or untreated wood, precast concrete, or plastic piling.

(b) Anchor Material. Anchor material is limited to nonleachable, inert material and cannot include solid waste.

(c) Minimum Necessary. Number of piling or anchors placed must be the minimum necessary to fulfill the essential purpose.

(d) Sound Attenuation for Pile Driving. A vibratory hammer must be used whenever feasible. If an impact hammer must be used to drive or proof steel piles, sound attenuation measures including cushion blocks (wood blocks between pile and hammer) and bubble curtains operated to distribute air bubbles around 100 percent of the piling for the full depth of the water column must be used:

(A) If water velocity is 1.7 miles per hour or less, an unconfined bubble curtain may be used; or

(B) If water velocity is greater than 1.7 miles per hour, a confined bubble curtain (e.g., bubble ring surrounded by fabric or metal sleeve) must be used.

(e) Method for Removal of Piling. Removal of piling must be conducted using a vibratory method:

(A) Piling must not intentionally be broken by twisting or bending;

(B) Upon removal, piling must be handled to effectively contain all adhering sediment. All return flows must meet state water quality standards; and

(f) Piling Removal Problems in Uncontaminated Sediment. If wood piling breaks above or below the bed surface within an area of uncontaminated sediment, piling must be cut at least three feet below the bed surface or otherwise pushed into that depth, then covered with a cap of clean substrate.

(g) Piling Removal Problems in Contaminated Sediment. If wood piling breaks above the bed surface within an area of known contaminated sediment, piling must be cut at the bed surface or otherwise pushed to that depth. If piling breaks in contaminated sediment below the bed surface, no further attempt at removal may be made and the hole must be covered with a cap of clean substrate.

(h) Prevent Perching. Piling extending above dock or railing level must be fitted with devices to effectively prevent perching by fish-eating bird species.

(i) Barge or Top of Bank Position. Piling must be placed or removed from a barge-mounted or above top-of-bank position. If barge-mounted, barge must not at any time be grounded in the bed or banks.

(j) Backfilling. Placement of native sand or other native materials is required in holes left by the removal of piling unless otherwise approved by the Department.

(k) Where needed, temporary placement of containment booms is allowed. Containment booms must be removed immediately following the completion of the project.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 8-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0700 Temporary Impacts to Wetlands and Waterways – Purpose

OAR 141-089-0700 to 141-089-0715 set forth the conditions under which a person may, without an individual removal-fill permit, general removal fill permit, or DEQ remedial action permit waiver from the Department, temporarily fill or remove material in wetlands and waterways.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 9-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0705 Temporary Impacts to Wetlands and Waterways – Eligibility Requirements

To be eligible, a project must adhere to the following:

(1) Wetland Conversion. The project must not convert forested or shrub wetlands to a different Cowardin class nor may it convert any wetland class to open water. The project must not permanently convert waters to upland.

(2) Wetland Delineation and Concurrence. For temporary impacts to wetlands, a copy of a valid, Department-approved wetland delineation map and concurrence letter must be provided with the notification pursuant to OAR 141-089-0640, unless otherwise directed by the Department.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 10-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0710 Temporary Impacts to Wetlands and Waterways – Authorized Projects

Project activities are limited to the following.

(1) Temporary impact of 0.50 acres or less of nontidal wetlands;

(2) Temporary impact of 0.20 acres or less of tidal wetlands;

(3) Placement and removal of structures necessary to isolate a work area from a waterway and conduct fish and wildlife salvage not to exceed 100 linear feet measured at the longest length of isolated work area below the ordinary high water line; and

(4) The temporary placement of spud piles (i.e., piles driven into the bed of a waterway to provide stability for a floating work platform) during construction activity.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 11-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0715 Temporary Impacts to Wetlands and Waterways – Project-Specific Conditions

(1) Project activities must adhere to the general conditions in OAR 141-089-0650 and the following project-specific conditions:

(2) Temporary waterway structures for work area isolation must be placed to:

(a) Maintain near-normal downstream flow for the duration of placement and return flow to preconstruction conditions at project completion.

(b) Not be channel-spanning, unless otherwise approved by the Department.

(d) Not dewater any wetlands, unless otherwise approved by the Department as an eligible temporary impact.

(e) Provide for fish and wildlife salvage, rescue, and relocation prior to commencement of any in-water work.

(f) An Oregon Rescue/Salvage Permit from ODFW is required to conduct fish and wildlife salvage (OAR 635-412-0035) and additional authorization may be required from the National Marine Fisheries Service (NMFS) or U.S. Fish and Wildlife Service (USFWS) if federal Endangered Species Act (ESA)-listed species will be affected.

(3) Temporary placement of spud piles for construction platform anchoring may only occur where the platform will not be grounded on the bed or banks of the waterway at any time.

(4) Protection of Wetland Ground Surface. Before placing temporary fill in wetlands, fabric must be placed to allow complete removal of all temporary materials from the wetlands. If necessary to assist with removal of the fill, chain link fence or similar material may be placed under the fill. All fabric, fencing and other materials must be completely removed at project completion.

(5) Trenching in Wetlands. If there is trenching or excavation in wetlands, the top layer of soil must be separated from the rest of the excavated material and put back on top when the trench or pit is backfilled. If the native underlying soils are not used as bedding material and a coarser nonnative soil or other material is used, preventative measures such as clay or concrete plugs must be used so that underground hydraulic piping does not dewater the site and adjacent wetlands.

(6) Temporary Impact Rectification. Rectification of temporary impacts includes re-establishment of pre-existing contours and pre-existing vegetation.

(7) Timing of Temporary Wetland Impact Rectification. Notwithstanding the definition of “Temporary Impacts” in OAR 141-085-0510, the reestablishment of preconstruction contours and planting to revegetate temporarily disturbed wetland areas must be completed within 12 months of the initial impacts or before the expiration of the OAR 141-089-0640(3)(a) determination, whichever comes first, unless otherwise approved by the Department. Planting must include species of sufficient number, spacing, and diversity to replace affected aquatic functions.

(8) Timing of Temporary Waterway Impact Rectification. Reestablishment of preconstruction contours and planting to revegetate temporarily disturbed waterway areas must be completed immediately upon project completion or before or expiration of the OAR 141-089-0640(3)(a) determination, whichever comes first, unless otherwise approved by the Department. Planting must include species of sufficient number, spacing, and diversity to replace affected aquatic functions.

(9) Rectification Monitoring Report Required. Unless otherwise directed by the Department, a rectification report demonstrating restoration of predisturbance grades and revegetation must be provided to the Department within 90 days of temporary impacts rectification. The rectification report must include:

(a) Cover sheet including authorization number, responsible party’s name, current contact information, monitoring date, and report submittal date.

(b) A description of any deviation in the temporary impact size or locations as described in the OAR 141-089-0640(3)(a) determination. Any deviations mut be accompanied by a scaled drawing or map that illustrates the deviation area(s).

(d) For temporary wetland impacts: data plots, according to OAR 141-090, to confirm that the wetland area temporarily impacted by the project meets wetland criteria.

(e) Representative photographs (with photo point locations illustrated) clearly showing conditions within the rectification area(s).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 12-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0720 Waterway Bank Stabilization Using Bioengineering – Purpose

OAR 141-089-0720 to 141-089-0735 set forth the conditions under which a person may, without an individual removal-fill permit, general removal fill permit, or DEQ remedial action permit waiver from the Department, fill or remove material in waterways for the purpose of stabilizing the actively eroding banks of waterways using bioengineering methods. Temporary impacts to wetlands or waterways associated with a project may be authorized by combining this GA (OAR 141-089-0720, et seq. ) with the Temporary Impacts to Wetlands and Waterways GA (OAR 141-089-0700, et seq. ).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 13-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0725 Waterway Bank Stabilization Using Bioengineering – Eligibility

To be eligible, a project must be for the purpose of bank stabilization in waterways and meet the criteria in OAR 141-089-0730.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 14-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0730 Waterway Bank Stabilization Using Bioengineering – Authorized Projects

Project activities are limited to the following.

(1) Bank Terracing, Sloping, and Reshaping. Such projects include bank terracing and sloping, and associated placement of biodegradable erosion control, to facilitate establishment of woody vegetation. A project must meet the following criteria:

(a) The slope must not be steeper than 3:1 (horizontal:vertical) ratio unless otherwise approved by the Department when natural slopes within the waterway reach are steeper than 3:1;

(b) The entire bank treatment area must be replanted with native vegetation appropriate to the area and at a density consistent with natural stream bank densities in the area, unless otherwise approved by the Department; and

(c) Planting of native vegetation must be completed by March of the year following establishment of the new contours unless otherwise approved by the Department.

(2) Placement of Large Wood. Trees or root wads may be used. A project must meet the following criteria:

(a) At a minimum, root wad diameter, trunk diameter and tree length, or their cumulative effect, must be of a size sufficient to withstand the rate of flow that caused the bank erosion;

(b) The root wads or basal ends must be oriented upstream unless otherwise approved by the Department;

(c) Large wood must be of a species native to the riparian zone within the project area or a reference area unless otherwise approved by the Department;

(d) If fastening is necessary, only pinning may be used; and

(e) If anchoring is necessary, only rock ballast, untreated wood posts, stabilizing wood or key pieces of wood may be used as anchors.

(3) Log Toe Placement. The project must meet the following criteria:

(a) Log toes must not extend more than one foot above the elevation of the water at base flow (i.e., the flow sourced from the ground and not from runoff);

(b) Logs must be large enough to withstand the hydraulic energy in the stream and be anchored securely to the bank by burial; and

(c) Logs must be of a species native to the riparian zone within the project area unless otherwise approved by the Department.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 15-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0735 Waterway Bank Stabilization Using Bioengineering – Project-Specific Conditions

(1) Project activities must adhere to the general conditions in OAR 141-089-0650 and the following project-specific conditions.

(2) Anchoring. Anchoring materials must:

(a) Not restrict or redirect flows; and

(b) Be set below grade to minimize the appearance.

(3) Ballast. Use of rock and gravel for ballast is limited as follows:

(a) Only the minimal amount necessary may be used to achieve project objectives and cannot function to armor the bank;

(b) Rip-rap and rock toe placement is not allowed;

(d) All rock must be placed, not dumped, from above the bank line, from a dewatered position or, from a construction platform-mounted position.

(4) Native Materials. Material used must be similar to materials currently or historically found naturally in the stream reach except as follows:

(a) Use of straw bales, straw or coir logs, jute fabric, or other biodegradable material may be used where necessary for temporary erosion control;

(b) Other temporary use of nonnative materials as necessary for compliance with OAR 141-089-0650 (General Conditions);

(d) Erosion-resistant ballast rock may be sourced from an upland location but cannot include broken concrete, asphalt, or other waste materials.

(5) Uplands. A project may not create new uplands nor reestablish lost uplands resulting from the bank erosion event(s), other than incidental creation necessary to achieve the bio-engineered bank stabilization.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 16-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0780 Waterway Habitat Improvement – Purpose

OAR 141-089-0780 to 141-089-0795 set forth the conditions under which a person may, without an individual removal-fill permit, general removal-fill permit, or DEQ remedial action permit waiver from the Department, fill or remove material in waterways for the effect of improving functions and values of aquatic habitat and facilitating species recovery in waterways. Temporary impacts to wetlands or waterways associated with a project may be authorized by combining this GA (OAR 141-089-0780, et seq. ) with the Temporary Impacts to Wetlands and Waterways GA (OAR 141-089-0700, et seq. ).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 25-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0785 Waterway Habitat Improvement – Eligibility Requirements

(1) Compatible with Management Plans. The project must not be detrimental to existing functions and values that address problems identified in a watershed management plan or water quality management plan.

(2) Nonnative Species. The project will not involve the introduction of nonnative plants other than for temporary soil stabilization. Native seed mixes are preferred. When native seed mix is not available, nonnative seed mix that will hold the soil and not persist may be used if certified free of noxious weeds.

(3) Consistent with Habitat Incentive Agreements. If the project is under a Habitat Incentive Agreement with ODFW, the project must be in conformance with that Agreement.

(4) Compensatory Mitigation. Projects cannot be for the purpose of constructing compensatory mitigation required by an individual removal-fill permit or general removal-fill permit.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 26-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0790 Waterway Habitat Improvement – Authorized Projects

Project activities are limited to the following. The activities may be combined for a project and the removal-fill volume thresholds for each activity may be calculated separately:

(1) Barrier Removal. Barriers may be removed to reconnect or improve waterway corridors, reconnect existing side channel or alcove habitat, reestablish or improve wetlands, restore or improve natural channel and flow conditions, and assist fish and wildlife movement. The project must meet the following criteria:

(a) Removal is limited to artificially created barriers including, but not limited to culverts, dams, earthen embankments, bridge abutments, spillway systems, tidegates, outfalls, and pipes;

(b) Side channels or alcoves being reconnected must be naturally formed and not require alteration or reconstruction, and the reconnection cannot result in dewatering mainstem flow (i.e., the mainstem must continue to carry the main flow post-construction; and

(2) Grade Control. This project includes construction of grade control structures to stabilize channel grade, reduce erosion, reconnect a waterway to the floodplain or reduce channel incision. The project must meet the following criteria:

(a) Grade control structures must be constructed of materials that mimic natural substrate found within the system;

(b) Grade control structures must be placed diagonally across the channel or in upstream pointing “V” or “U” configurations;

(c) Grade control structures must be sized appropriately for the system to prevent creating a fish passage barrier or require maintenance; and

(d) The project is limited to 100 cubic yards for every one-half mile of waterway, unless otherwise approved by the Department.

(3) Fish and Wildlife Passage. This project includes installation or replacement of fish passage structures including, but not limited to, vertical slot fishways, nature-like fishways and lamprey ramps to aid fish and/or wildlife passage. This project additionally includes replacing, improving, or relocating water diversion structures for the primary purpose of restoring or improving fish passage. The project must meet the following criteria:

(a) The project is not otherwise exempt pursuant to OAR 141-085-0530;

(b) Passage structures must be sized appropriately for the system yet be stable; and

(c) The project is limited to 100 cubic yards for every one-half mile of waterway, unless otherwise approved by the Department.

(4) Installation, Maintenance, or Replacement of Fish Screening Structures. The project must meet the following criteria:

(a) The project is not otherwise exempt pursuant to OAR 141-085-0530; and

(b) Cumulative removal-fill for this project, including return pipe volumes for fish screens, must not exceed 100 cubic yards in waters of this state.

(5) Porous Weir. This project includes the construction of a self-sustaining, low-profile structure. A porous weir delays but does not store water. It is used to redirect flow toward the center of the channel, provide energy dissipation, and promote increased sedimentation along banks while allowing fish passage through a porous design. This project includes, but is not limited to, cross vanes and artificial riffles. The project must meet the following criteria:

(a) Be placed so scour pools occur in areas where pools would naturally form in a pool and riffle complex;

(b) Not result in culvert inlet or outlet scour;

(d) Be constructed of materials that mimic natural substrate found within the system;

(e) Not exceed 40 percent of the channel cross-section width unless otherwise approved by the Department; and

(f) Not exceed 100 cubic yards for every one-half mile of waterway, unless otherwise approved by the Department.

(6) Remove, Modify, Repair, or Replace Existing Culverts and Tide Gates for Fish Passage. Tide gate and culvert removal, modification, repair, or replacement that will create or improve fish passage is allowed when:

(a) The project is not otherwise exempt pursuant to OAR 141-085-0530;

(b) The project may include the incorporation of simulated streambed material and shadow boulders inside and beyond the culvert, as necessary;

(c) Any placement of new rock to stabilize culvert inlet and outlet must include planting of native woody vegetation appropriate to the area and at a density consistent with natural stream bank densities in the area, unless otherwise approved by the Department and,

(d) The project cannot include channel realignment, other than that necessary when placing a new culvert or tidegate immediately adjacent to the existing culvert or tidegate, and cannot convert bed substrate type.

(7) Habitat Logs, Beaver Dam Analogs, and Post-Assisted Log Structures. This project includes construction of low-profile structures within a waterway in a manner designed to mimic the hydrological, geomorphological, and ecological functions of natural beaver dams or otherwise mimic natural wood accumulations. The project must meet the following criteria:

(a) Cumulative removal-fill volume may not exceed 100 cubic yards for every one-half mile of waterway unless otherwise approved by the Department;

(b) No cabling, wiring, or mortaring of materials or use of steel or treated posts is allowed;

(c) Wood posts must be untreated and, to the extent possible, must be driven to a depth of at least 1.5 times the expected scour depth of the waterway and with at least one foot of clear space between posts;

(d) Log placements must be consistent with “Guide to Large Wood and Boulder Placements” (ODFW, 2011), except that nonrandom placement of logs is permissible.

(e) Beaver dam analogs and post-assisted log structures must be consistent with “Beaver Restoration Guidebook” (USFWS, et al .) and “Low Tech Process-Based Restoration of Riverscapes: Design Manual” (USU Restoration Consortium);

(f) Weaves must be sufficiently loose to allow fish passage through the structures while maintaining fish rearing habitat in the delayed water area upstream of the structure;

(g) Only river-run gravels or cobbles may be used where rock is necessary to prevent under-scour;

(h) Native woody vegetation must be preserved to the maximum extent practicable. When not practicable, woody vegetation must be knocked down to allow resprouting rather than removed; and,

(i) No water may be diverted from the waterway for a beneficial use within the area in which flow is delayed or slowed by the project without the appropriate water-use authorization from Oregon Water Resources Department.

(8) Engineered Log Jams. The project must meet the following criteria:

(a) At a minimum, wood pieces, or their cumulative effect, must be of a size sufficient to withstand 25-year flood event rates of flow;

(b) Large wood must be of a species native to the riparian zone within the project area or a reference area unless otherwise approved by the Department;

(d) If fastening is necessary, only pinning may be used; and

(e) If anchoring is necessary, only rock ballast, untreated posts, stabilizing wood, or key pieces of wood may be used as anchors.

(9) Maintenance and Reconstruction of In-Stream Habitat Structures. Removal and fill necessary to maintain or reconstruct the serviceability of existing, man-made in-stream habitat structures not otherwise exempted by OAR 141-085-0534. The terms “maintenance” and “reconstruction” have the same meanings as in OAR 141-085-0510.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 27-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0795 Waterway Habitat Improvement – Project-Specific Conditions

(1) Projects must adhere to the general conditions in OAR 141-089-0650 and the following project-specific conditions.

(2) Anchoring. Anchoring materials must not restrict or redirect flows, be set below grade to minimize the appearance, and be placed in areas naturally containing the anchoring material.

(3) Rock and Gravel Placement. Rock and gravel fill must comply with the following conditions:

(a) Only the minimal amount necessary may be used to achieve project objectives;

(b) Rock must be placed in a manner that does not increase the upland surface area;

(d) All rock must be placed, not dumped, from above the bank line; and

(e) Only erosion-resistant rock from an upland source may be used.

(4) Material must be similar to materials currently or historically found naturally in the stream reach except that the following may be used:

(a) Straw bales, straw or coir logs, jute fabric or other bio-degradable material where necessary for temporary erosion control;

(b) Other temporary use of nonnatural materials as necessary for compliance with OAR 141-089-0650;

(d) Rock for culvert inlet and outlet stabilization pursuant to OAR 141-089-0790(6).

(5) Self Sustaining. Projects, other than installation or replacement of passage structures, fish screens, beaver dam analogs, and post-assisted log structures, must be self-sustaining and not require maintenance or manipulation.

(6) Post-Project Reporting. Upon completion, a project must be reported to the Oregon Watershed Enhancement Board at http://www.oregon.gov/OWEB by completing the Oregon Watershed Restoration Inventory (OWRI) form. The Department GA number must be included on the reporting form.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 28-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0800 Wetland Ecosystem Improvement – Purpose

OAR 141-089-0800 to 141-089-0815 set forth the conditions under which a person may, without an individual removal-fill permit, general removal-fill permit, or DEQ remedial action permit waiver from the Department, carry out projects for the purpose of wetland ecosystem improvement. Wetland ecosystem improvement means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historical functions to a disturbed or altered wetland. Temporary impacts to wetlands or waterways associated with a project may be authorized by combining this GA (141-089-0800, et seq. ) with the Temporary Impacts to Wetlands and Waterways GA (OAR 141-089-0700 , et seq. ).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 29-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0805 Wetland Ecosystem Improvement – Eligibility Requirements

(1) Project Purpose. The project purpose is to improve the existing condition of a site to repair or return natural or historical functions to a disturbed or former wetland. The project may not be for the purpose of altering a site to produce conditions that did not previously exist to augment specific functions.

(2) Compatible with Management Plans. The project must not be detrimental to existing functions and values that address problems identified in a watershed management plan or water quality management plan.

(3) Evidence Required. Current site conditions must exhibit alterations in topography, soils, native vegetation, or hydrology that have resulted in wetland loss or wetland disturbance that is potentially reversible.

(4) Conversion. The project will not result in conversion of wetlands to uplands and will not include the conversion of existing functional wetland ecosystems to another aquatic use.

(5) Hydrology. Hydrologic manipulation must result in the hydrology of the improved site approximating the conditions that existed before the disturbance or alteration, to the extent practicable. Hydrology conditions include timing of inflow and outflow, duration, frequency, and hydroperiod.

(6) Consistent with Wetland Conservation Plan. If the project is in an area for which there is a Department-approved Wetland Conservation Plan, the project must be in conformance with that plan.

(7) Consistent with Habitat Incentive Agreements. If the project is under a Habitat Incentive Agreement with ODFW, the project must be in conformance with that Agreement.

(8) Compensatory Mitigation. Projects cannot be for the purpose of constructing compensatory wetland mitigation.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 30-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0810 Wetland Ecosystem Improvement – Authorized Projects

Projects are limited to the following.

(1) Vegetation Management. Ground-altering activities needed to reestablish and maintain native vegetation, such as mechanized land clearing to remove nonnative vegetation and disking for seedbed preparation and planting of native wetland species is allowed.

(2) Floodplain Contouring. Floodplain contouring of wetland terraces to reconnect a waterway to an adjacent wetland or expand the area of seasonal inundation is allowed. This project does not include modification of a stream channel.

(3) Microtopography Establishment. Grading and contouring to reestablish microtopography (e.g., hummocks, minor ridges, very shallow depressions) in areas that have been previously leveled, scalped, or otherwise disturbed to eliminate preexisting microtopography is allowed. The project is limited to six-inch maximum elevation rise or drop.

(4) Macrotopography Establishment. Shallow excavation to create scrapes, basins, meanders, and swales that do not exceed two feet in depth from existing or original ground surface and have minimum side slopes of 6:1 or gentler is allowed. If shallow excavation is combined with berm construction described in section (6) of this rule, the maximum depth of inundation must not exceed two feet.

(5) Removal of Materials. Removal of soil or other materials that have been placed in a wetland for the purpose of restoring or improving the natural and/or historical topography is allowed.

(6) Low Earthen Berms and Spillways. Construction of low earthen berms and vegetated spillways that impede, contain, or direct surface water may be used to extend the area or duration of shallow inundation. The design height of the berms must be no more than 18 inches from the existing ground level and have a maximum top width of four feet, variable slopes at a minimum of 6:1 or gentler on the water side, and maximum slopes of 6:1 on the land side, unless gentler slopes do not result in the conversion of wetland to upland. These structures may be installed to manipulate seasonal water depth, duration and degree of fluctuation that would be characteristic of natural or historical hydrologic conditions and to manage invasive species. When berms are combined with shallow excavation described in section (4) of this rule, the maximum depth of inundation must not exceed two feet.

(7) Removal of Structures. Removal of diversion structures, water control structures, berms, and tidegates, as long as the removal does not cause water to rise or be redirected in such a manner to result in damage to structures or substantial property is allowed.

(8) Placement of Temporary Exclusion Fencing in Wetlands. Where necessary to protect plantings from herbivores, temporary exclusion fencing may be placed in wetlands.

(9) Maintenance and Reconstruction of Wetland Ecosystem Improvement Structures. Removal and fill necessary to maintain or reconstruct the serviceability of existing, man-made wetland ecosystem improvement structures not otherwise exempted by OAR 141-085-0534 is allowed. The terms “maintenance” and “reconstruction” have the same meanings as in OAR 141-085-0510.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 31-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0815 Wetland Ecosystem Improvement – Project-Specific Conditions

(1) Projects must adhere to the general conditions in OAR 141-089-0650 and the following project-specific conditions.

(2) Water storage. Water may not be stored for a beneficial use without the appropriate water-use authorization from Oregon Water Resources Department; and

(3) Post-Project Reporting. Upon completion of the project, the project must be reported to the Oregon Watershed Enhancement Board at http://www.oregon.gov/OWEB by completing the Oregon Watershed Restoration Inventory (OWRI) form. The Department GA number is required to be included on the reporting form.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2024, amend filed 05/31/2024, effective 07/01/2024
DSL 32-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0820 Non-motorized In-stream Placer Mining in ESH – Purpose

These rules set forth conditions under which a person may, without an individual removal-fill permit from the Department, fill, remove, and move material in waters of this state for the purpose of in-stream placer mining using only non-motorized methods or activities, including gravity dredge or siphon dredge, within areas designated as Essential Indigenous Anadromous Salmonid Habitat (ESH) that is not designated as State Scenic Waterway (SSW).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 77-2018, amend filed 05/07/2018, effective 05/07/2018
DSL 33-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2016, f. & cert. ef. 6-15-16
DSL 4-2015(Temp), f. 12-28-15, cert. ef. 1-2-16 thru 6-29-16
DSL 4-2013, f. 12-13-13, cert. ef. 1-1-14
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0823 Non-motorized In-stream Placer Mining within ESH - Definitions

For the purposes of OAR 141-089-0820 through 141-089-0835, the following definitions are used in addition to those found in ORS 196.600 to 196.990 and OAR 141-085-0510.

(1) “Completion of the activity” means the responsible party will not return or has not returned to the activity location to resume the activity within 24 hours.

(2) “Gravity Dredge” means a device with a suction nozzle and hose for conveyance of streambed material for which suction is created by gravity. A gravity dredge does not have an auxiliary power source.

(3) “Motorized Equipment” means equipment or devices powered by internal combustion, hydraulics, pneumatics, electricity, or mechanical means.

(4) “In-stream” means below the ordinary high water line of a stream and within the wet perimeter and any adjacent non-vegetated dry gravel bar.

(5) “Placer Mining” means to search or explore for samples of gold, silver or other precious metals by removing, filling or moving material from or within the bed of a stream.

(6) “Siphon Dredge” means a device with a suction nozzle and hose for conveyance of streambed material for which suction is created by siphon action. A siphon dredge does not have an auxiliary power source.

History

Statutory/Other Authority: ORS 196.600-196.692 & 196.795-196.990
Statutes/Other Implemented: ORS 196.600-196.692, 196.795-196.990 & SB 3
DSL 77-2018, adopt filed 05/07/2018, effective 05/07/2018

Or. Admin. R. 141-089-0825 Non-motorized In-stream Placer Mining in ESH - Eligibility Requirements

To be eligible, a project must adhere to the following:

(1) Purpose. The activity is for the specific purpose of non-motorized in-stream placer mining within ESH.

(2) Not within a State Scenic Waterway. The activity may not occur within SSW.

(3) Preceding Year Activity Report. If the person listed on the notification was authorized under this GA or the GA for Recreational Placer Mining in ESH during the preceding calendar year, a completed In-stream Placer Mining Report for that preceding calendar year must have been submitted to the Department by the last business day in February of the current calendar year.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 77-2018, amend filed 05/07/2018, effective 05/07/2018
DSL 34-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2016, f. & cert. ef. 6-15-16
DSL 4-2015(Temp), f. 12-28-15, cert. ef. 1-2-16 thru 6-29-16
DSL 4-2013, f. 12-13-13, cert. ef. 1-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0827 Non-motorized In-stream Placer Mining within ESH - Expiration and No Transfer

(1) Expiration of In-stream Placer Mining Authorizations. Authorizations issued under this GA expire on December 31 of each calendar year.

(2) No Transfer of Authorization. An authorization cannot be transferred to another person.

History

Statutory/Other Authority: ORS 196.600-196.692 & 196.795-196.990
Statutes/Other Implemented: ORS 196.600-196.692 & 196.795-196.990
DSL 79-2018, adopt filed 06/29/2018, effective 07/01/2018
DSL 78-2018, temporary adopt filed 05/07/2018, effective 05/07/2018 through 11/02/2018

Or. Admin. R. 141-089-0830 Non-motorized In-stream Placer Mining in ESH - Authorized Activities

Non-motorized in-stream placer mining within ESH that fills, removes, or moves cumulatively less than twenty-five (25) cubic yards of material annually. Material filled, removed, or moved includes the construction and removal of temporary dams.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 77-2018, amend filed 05/07/2018, effective 05/07/2018
DSL 35-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 4-2013, f. 12-13-13, cert. ef. 1-1-14
DSL 2-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-089-0835 Non-motorized In-stream Placer Mining in ESH - Activity-Specific Conditions

(1) General Conditions Apply. Activities eligible for this General Authorization must adhere to the general conditions in OAR 141-089-0650 except for subsections (8), (9), and (14). The following activity-specific conditions also apply:

(2) Prevent Fish Stranding. Upon completion of the activity at any given location, the responsible party must fill all furrows, potholes and other depressions created by the activity.

(3) Level All Piles. Upon completion of the activity at any given location, the responsible party must level all piles created by the activity.

(4) Wet Perimeter. The activity must be confined to the wet perimeter.

(5) Disturbance of the Bank and Riparian Vegetation. The activity must not disturb the bank. The activity may not undercut or erode banks or remove or disturb boulders, rooted vegetation, embedded woody material, or other habitat structure on the bank. The activity may not disturb or destroy woody vegetation on the bank for the creation of new access routes.

(6) Fish Passage. The activity shall not divert a waterway or obstruct fish passage.

(7) Minimization of Impounded Water. The activity may impound only the minimal area of water necessary to operate the dredge under the following conditions:

(a) Any temporary dam shall not extend across more than 75% of the width of the surface water at the time the activity occurs;

(b) Any temporary dam shall be consistent with ODFW requirements set forth in ORS 509.580 through 509.901 and OAR 635-412-0005 through 635-412-0040;

(8) No Disturbance of Stream Structure. The activity shall not move boulders, logs, stumps or other woody material from the bed, except for movement by hand and non-motorized equipment. All boulders, logs, stumps and other woody material moved must be returned to its original position upon completion of the activity.

(9) Dredge Intake Nozzle and Hose Limited. Any gravity or siphon dredge used during the activity shall not have an intake nozzle or hose that has an inside diameter exceeding four inches.

(10) Annual Report Required. The responsible party must maintain a monitoring log and record the date, location, nozzle diameter, hose diameter, and amount of material disturbed for each day of operation. By February 28 of each year, the responsible party must submit to the Department an annual report, on a form provided by the Department, which states the estimated amount of material that was filled, removed or moved and the mining locations, by latitude and longitude, in each specific waterway during the preceding calendar year. If no jurisdictional activity was conducted, the report must be submitted reporting zero cubic yards for the year.

(11) Responsible Party Must be Present. Alternate persons may operate equipment, provided the responsible party listed on the authorization is present at all times during the activity.

(12) Limited to One Suction Device. Only one gravity or siphon dredge, one hose, and one nozzle may be operated at any given time under this authorization.

(13) Motorized Equipment Not Allowed. Operation of any motorized equipment is prohibited below ordinary high water.

(14) Operation Limited to Locations Listed. The activity may be conducted at the locations listed on the authorization only. Written requests to modify locations for this authorization will be reviewed within 14 days of the request, upon which time the Department may issue a revised authorization.

(15) Obstructions to Navigation and Recreation Prohibited. In no circumstance shall anchoring or operation of suction dredges interfere with navigation or cause a safety hazard to public recreation.

(16) Avoid Mussels. Mining equipment, including suction dredges and in-water non-motorized mining equipment must not be used where live freshwater mussels are present. Operations must be relocated if live mussels are encountered during excavation.

(17) Avoid Lamprey. Mining equipment, including suction dredges and in-water non-motorized mining equipment must not be used where Pacific Lamprey adults or larvae are present. Operations must be relocated if lamprey are encountered during excavation. If lamprey larvae are found, the operator must salvage the larvae by sifting through tailings and returning salvaged larvae to the stream away from mining activity. The operator may not resume mining operations in a location where larvae have been found, even after salvaging larvae.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 77-2018, amend filed 05/07/2018, effective 05/07/2018
DSL 36-2018, minor correction filed 01/03/2018, effective 01/03/2018
DSL 3-2016, f. & cert. ef. 6-15-16
DSL 4-2015(Temp), f. 12-28-15, cert. ef. 1-2-16 thru 6-29-16
DSL 4-2013, f. 12-13-13, cert. ef. 1-1-14
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2011, f. & cert. ef. 3-1-11

Division 90 ADMINISTRATIVE RULES FOR WETLAND DELINEATION REPORT REQUIREMENTS AND FOR JURISDICTIONAL DETERMINATIONS FOR THE PURPOSE OF REGULATING FILL AND REMOVAL WITHIN WATERS OF THIS STATE

Or. Admin. R. 141-090-0005 Purpose

The purpose of these rules is to establish standards and procedures by which the Department of State Lands makes jurisdictional determinations for the purpose of regulating fill and removal within waters of this state. These rules also establish minimum standards for wetland delineation reports submitted to the Department for review and the procedures for Department review and approval.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0010 Applicability

(1) These rules establish the standards and procedures used by the Department of State Lands to identify waters of this state, which are subject to regulation and authorization requirements of the Removal-Fill Law (ORS 196.800 to 196.990).

(2) These rules are supplemental to administrative rules for issuance and enforcement of removal and fill authorizations (OAR 141-085; 141-0102); rules pertaining to wetland conservation plans and local wetlands inventories (OAR 141-086; 141-120); rules pertaining to the identification of significant wetlands (OAR 141-086); rules pertaining to General Authorizations (141-089); rules pertaining to General Permits (141-093) and rules pertaining to Oregon Scenic Waterways (141-100).

(3) Agencies such as the U.S. Army Corps of Engineers (USACE) and the Natural Resources Conservation Service (NRCS) have separate regulatory authority over waters of the United States and separate jurisdictional determination procedures.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0015 Policy

(1) It is the policy of the State of Oregon that the protection, conservation and best use of the water resources of this state are matters of the utmost public concern (ORS 196.805) and that the state use a single definition of wetlands and a single, uniform methodology of delineating wetland boundaries (ORS 196.672).

(2) In accord with these policies the Department shall, to the greatest extent possible:

(a) Provide a clear process for making, revising, reconsidering, or reissuing jurisdictional determinations;

(b) Make jurisdictional determinations using the best available science, technical guidance and documents;

(c) Use sound professional judgment in interpreting maps, remotely sensed imagery, environmental data and other relevant information;

(d) Provide jurisdictional determinations that improve the level of regulatory certainty for landowners and developers and that help ensure that removal or fill of material in waters of this state does not occur without a required removal or fill permit; and

(e) Encourage landowners and developers to utilize wetland delineation reports at the earliest stage of site development planning to incorporate measures to avoid and minimize impacts to waters of this state and thus prevent unnecessary regulatory delays.

(3) Because waters of this state can be affected over time by both natural changes and human activities, jurisdictional determinations are valid for a limited period of time.

(4) The Director of the Department of State Lands shall designate employees responsible for making jurisdictional determinations as described in these rules.

(5) Final authority for determining the adequacy of the procedures, methods, application of technical documents, interpretation and analysis of maps and data, and conclusions regarding the identification of waters of this state and jurisdictional determinations rests with the Department except when the Department’s determination is reviewed by a court of competent jurisdiction.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: 196.800 – 196.990, 196.600 – 196.665, 196.668 – 96.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0020 Definitions

For the purpose of these rules:

(1) "Agent" means a business partner, attorney, or any individual who is legally authorized to represent the landowner's interests.

(2) "Applicant" means a person who has applied to the Department for a wetland delineation report approval, a jurisdictional determination, or a removal or fill authorization.

(3) “Aquatic Resources of Special Concern” (ARSC) means waters of this state that provide functions, values and habitats that are limited in quantity because they are naturally rare or have been disproportionately lost due to prior impacts. These include bogs, fens, cold water habitat, hot springs, interdunal wetlands, kelp beds, mature forested wetlands, native eelgrass beds, off-channel habitats (alcoves and side channels), ultramafic soil wetlands, vernal pools, wet prairies, wooded tidal wetlands, certain alkaline wetlands and lakes, and others as determined by the Department.

(4) "Authorization Application" means the written application for an authorization to place fill in or remove material from waters of this state as required by OAR 141-085, 141-089, 141-0100 and 141-0102.

(5) "Basis of Jurisdictional Determination" means a summary statement of the criteria and indicators that support the Department's jurisdictional determination.

(6) "Change in Circumstances" means a change in site conditions that fundamentally alters the hydrology or substrate to the extent that the "normal circumstances" of waters of this state are changed. The change in circumstances may be due to alterations on- or off-site that affect the site sufficiently to enlarge, reduce, or change the status or geographic extent of a jurisdictional water. A change in circumstances includes, but is not limited to, a dike breach or drainage system failure that restores former hydrologic conditions to a site, placement of fill material, or a water source diversion.

(7) "Consultant" means a person who provides professional services to the public.

(8) "Cowardin" means Cowardin, L. M., V. Carter, F. C. Golet, E. T. LaRoe. 1979. Classification of wetlands and deepwater habitats of the United States , U. S. Department of the Interior, Fish and Wildlife Service, Washington, D.C.

(9) "Delineation" means a determination of the presence of wetlands and other waters that includes marking boundaries on the ground and on a detailed map prepared by professional land survey or similar accurate methods.

(10) "Delineation Map" means a map included in a Wetland Delineation Report or provided with a Jurisdictional Determination by the Department that shows the tax lot(s) and study area(s) investigated and the location, size, and boundaries of all wetlands and other waters.

(11) "Determination" means a decision that a site may, does, is unlikely to, or does not contain waters of this state. A determination does not include the exact location or boundaries of waters of this state.

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

(13) "Department" means the Oregon Department of State Lands, including the Director.

(14) “Fill” means the total of deposits by artificial means equal to or exceeding 50 cubic yards or more of material at one location in any waters of this state. However, in designated essential salmonid habitat (ESH) areas (OAR 141-102) and in designated State Scenic Waterways (OAR 141-100) "fill" means any amount of deposit by artificial means.

(15) "Final Order" means a final agency action expressed in writing. "Final order" does not include any tentative or preliminary agency statement, including a "preliminary jurisdictional determination," and does not preclude further agency consideration of the subject matter of the final order.

(16) “Geographic Information System” (GIS) means a system of hardware, software, and data storage that allows for the analysis and display of information that has been geographically referenced.

(17) "Global Positioning System" (GPS) means a navigation system which consists of a network of satellites and earth receiver stations which allows a person to determine, via a receiver, their respective position in latitude, longitude, and altitude.

(18) "Hydrogeomorphic Method" (HGM) means the wetland classification based on a wetland’s location in the landscape and the sources and characteristics of water flow defined in Adamus, P.R.2001. Guidebook for hydrogeomorphic (HGM)-based assessment of Oregon wetland and riparian sites: Statewide classification and profiles . Oregon Division of State Lands, Salem, OR.

(19) "Indicator" means soil characteristics, vegetation, hydrology evidence, or other field data that indicate, by their presence or absence, the existence of certain environmental conditions. Indicators are used with other information, mapped or anecdotal, to determine the state's jurisdiction over wetlands and other waters.

(20) "Jurisdictional Determination" (JD) means a written decision by the Department that waters of this state subject to regulation and authorization requirements of OAR 141-085, 141-089, 141-0100 and 141-0102 are present or not present within a study area. The JD may include a delineation of the geographic boundaries of the area subject to state jurisdiction. For example, a JD may include the location of a wetland boundary or the location of the ordinary high water line (ordinary high water mark) of a waterway. A JD may, but does not necessarily, include a determination that a particular activity in a water of this state is subject to authorization requirements. The decision record includes the basis of the jurisdictional determination and is a final order subject to reconsideration according to the provisions in 141-090-0050.

(21) "Landowner" means the legal owner of the property for which a JD is requested or made.

(22) "Local Wetlands Inventory" (LWI) means a wetlands inventory map and supporting data that is conducted according to the requirements in OAR 141-086 and has been approved by the Department.

(23) "Manual" means the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual including the two regional supplements that cover Oregon: Arid West and Western Mountains, Valleys, and Coast, and applicable guidance (see OAR 141-090-0030) all of which is hereby incorporated by reference. The public may obtain a copy of the manual from the Department’s website.

(24) "National Wetlands Inventory" (NWI) means the wetlands inventory prepared by the U.S. Fish and Wildlife Service.

(25) "New Information" means data, reports, photographs, observations, or similar information that is provided to or obtained by the Department after the Department has issued a jurisdictional determination or issued an authorization.

(26) "Non-wetland" means an area that does not meet the wetland definition and criteria.

(27) "Normal Circumstances" means the soil and hydrologic conditions that are normally present, without regard to whether the vegetation has been removed. "Normal circumstances" includes a consideration of the permanence of any change to the site; for example, if fill material is placed on a wetland, the new "normal circumstances" may be non-wetland. In such a situation, the Department may determine if the placement of fill material required a fill permit.

(28) "Off-site Determination" means a determination by the Department or any other person that is conducted without a site visit using resources such as maps, remotely sensed imagery, observations from adjacent areas, or interviews with persons familiar with the site. An off-site determination is a Preliminary Jurisdictional Determination (PJD) unless otherwise stated in writing by the Department.

(29) "On-site Determination" means a determination by the Department or any other person that includes a site visit to collect relevant data. An on-site determination by the Department may be either a PJD or a JD.

(30) "Other Waters" means all waters other than wetlands regardless of jurisdiction.

(31) "Person" means an individual, corporation, firm, partnership, estate, association, body of government, or other legal entity.

(32) "Preliminary Jurisdictional Determination" (PJD) means an advisory determination issued in writing stating that waters of this state are present or not present within a study area. Because a PJD is advisory in nature, it has no specified duration or expiration and is not subject to appeal. PJDs include all wetland determinations by any person other than the Department and may also include wetlands mapped on the SWI.

(33) "Primary Contact" means the person designated by the landowner, agent, or applicant to serve as the Department's contact for the purpose of the review and approval of a wetland delineation report.

(34) “Removal” means the taking of more than 50 cubic yards of material (or its equivalent weight in tons) in any waters of this state in any calendar year; or the movement by artificial means of an equivalent amount of material on or within the bed of such waters, including channel relocation. However, in designated ESH areas (OAR 141-102) and in designated State Scenic Waterways (OAR 141-100) the 50-cubic-yard minimum threshold does not apply.

(35) "Removal-Fill Law" means ORS 196.800 through 196.990 and rules adopted thereunder relating to the filling and/or the removal of material in waters of this state.

(36) "Report" means a wetland delineation or determination report.

(37) "Sample Plot" means a portion of a study area within which environmental data (i.e., soils, hydrology, and vegetation) are collected that is representative of that area and documented on a wetland determination data form.

(38) “Site-specific methods” means sampling, delineation, and investigative procedures used to address the unique circumstances at a site. Boilerplate content from the manual and generic procedures are not site-specific.

(39) "Statewide Wetlands Inventory" (SWI) means a composite of wetland mapping (i.e., LWI, NWI, approved wetland delineations) and other natural resource mapping for the state of Oregon that is provided by the Department. The SWI is a screening tool to help identify approximate locations of potential wetlands and waterways and is continually revised as additional digital mapping information is received or obtained by the Department.

(40) “Study Area” means the area that was investigated for the presence of wetlands and other waters.

(41) “Upland” means any land that is not a wetland or other water.

(42) "Waters of this state" means all natural waterways, tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in the boundaries of this state, and all other navigable and non-navigable bodies of water in this state and those portions of the ocean shore, as defined in ORS 390.605, where removal or fill activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended.

(43) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions (ORS 196.800(17) and OAR 141-085-0510(110)).

(44) "Wetland Boundary" means a line marked on the ground and on a map that identifies the boundary line between wetlands and non-wetlands.

(45) "Wetland Delineation Report" means a written document that contains the methods, data, conclusions, and maps used to determine if wetlands and other waters of this state are present within a study area and, if so, describes and maps their locations and geographic extent. A wetland determination report documenting the presence or absence of waters of this state is included within this definition.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 2-2003(Temp), f. & cert. ef. 11-26-03 thru 5-23-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0025 Procedures for Determinations Conducted Entirely by the Department

(1) The Department shall make a determination (PJD or JD) according to the procedures in this section.

(2) The Department may make a determination for a number of reasons, including but not limited to:

(a) A written request from any person (e.g., a landowner or their agent) requesting a determination for one or more tax lots or any portion thereof;

(b) A Wetland Land Use Notice from a local government as required by ORS 196.676;

(d) A request from a local government or other government entity acting in its capacity to conduct site assessments for project or planning purposes;

(e) A removal-fill authorization application, request for a pre-application meeting or a compliance investigation;

(f) A request to review and approve a wetland delineation report (see additional requirements and procedures in OAR 141-090-0030, 141-090-0032 and 141-090-0035); or

(g) In conjunction with its authority and responsibilities under ORS 196.600 to 196.962, 196.800 to 196.990, and any applicable rules of the Department.

(3) The Department may prioritize the completion of determinations based upon the availability of staff and budget resources.

(4) A request to the Department to provide a wetland determination apart from an authorization application, wetland delineation report submittal, or local government notice shall include:

(a) A written request on a form provided by the Department;

(b) Landowner or agent permission to conduct a site visit if an on-site determination is desired;

(d) A site location map, such as a city map, showing the location with respect to nearest streets and site address, if any;

(e) A detailed site plan showing, as appropriate, such features as the tax lot boundaries, location of streets, roads, buildings, streams, and area of any planned development or removal or fill, if known; and

(f) The legal location from the tax map (Township, Range, Section, Quarter-Quarter Section and Tax Lot numbers).

(5) A request for a determination may include additional helpful information, such as:

(a) An appropriately-scaled topographic map of the site;

(b) A large-scale aerial photograph of the site; or

(6) A wetland determination request as described in section (4) and (5) of this rule may not be used to obtain agency review and approval of a wetland delineation.

(7) The Department will review the information provided with the request along with other available maps and information and provide a PJD or a JD.

(8) The Department may request additional information and may conduct a site visit to ensure an accurate determination. The Department shall contact the applicant or primary contact prior to conducting a site visit.

(9) An on-site determination conducted by the Department to make a JD or PJD shall include at a minimum:

(a) A location map showing the location of the study area with respect to major roads;

(b) A tax lot map showing property boundaries;

(d) The appropriate SWI mapping with the site located;

(e) The Natural Resources Conservation Service soil survey map with site located and soil type(s) mapped;

(f) A sketch map showing the approximate location of any waters of this state on the tax lot(s) or within a defined study area;

(g) At least one data form documenting any wetlands identified or possible wetlands determined not to meet wetland criteria; and

(h) Conclusions and recommendations regarding additional requirements (e.g., the need for a delineation or permit), as appropriate to the determination request and the situation.

(10) After review of the information and the site visit, if conducted, the Department may:

(a) Provide a written PJD or JD in accordance with section (11) of this rule; or

(b) Provide a written PJD and recommend that the landowner, agent, or applicant obtain a wetland delineation that meets the requirements in OAR 141-090-0030 and 141-090-0035.

(11) A written PJD or JD by the Department shall include at a minimum:

(a) A letter or form addressed to the applicant, landowner or agent that includes the location of the tax lot(s) or study area investigated, a file number for future reference, and the expiration date of the JD, or a response on or attached to a wetland land use notice form or other site development notice submitted by a local government;

(b) Comments regarding the use of the PJD or JD, as appropriate;

(d) A determination of the requirements or exemptions in accordance with OAR 141-085, 141-089, 141-093, 141-0100, and 141-0102 that apply to any waters of this state identified on the tax lot(s) and/or the proposed activity, if the information provided to or obtained by the Department is sufficient to make such determination; and

(e) A map or reference to a map showing the tax lot(s) or study area investigated and the approximate location of any identified waters of this state, unless the information provided to or obtained by the Department is not sufficient to make or refer to such a map.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0030 Technical Requirements

(1) Wetland determinations and delineations shall be conducted in accordance with the manual and any supporting technical or guidance documents issued by the Department.

(2) All other waters (e.g., streams, estuaries, ditches) shall be delineated at the jurisdictional limits described in OAR 141-085-0515.

(3) In addition to the requirements in this section, wetland delineation reports submitted to the Department for review and approval shall meet the standards and requirements in OAR 141-090-0035.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 2-2003(Temp), f. & cert. ef. 11-26-03 thru 5-23-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0032 Fees

(1) Any person submitting a wetland delineation report to the Department for review and approval must pay to the Department a nonrefundable fee based on the appropriate Wetland Delineation Report Tier. Refer to OAR 141-090-0032 PDF (incorporated by reference) for tier criteria.

(2) Wetland Delineation Report Tier Fees.

(a) Effective January 1, 2026:

(A) Tier 1 - $ 600

(B) Tier 2 - $1,200

(b) Effective January 1, 2027:

(A) Tier 1 - $761

(B) Tier 2 - $1,391

(A) Tier 1 - $931

(B) Tier 2 - $1,592

(d) Effective January 1, 2029:

(A) Tier 1 - $1,108

(B) Tier 2 - $1,803

(e) Effective January 1, 2030:

(A) Tier 1 - $1,295

(B) Tier 2 - $2,024

(3) If the person submitting a report withdraws the report from agency review after it has been submitted and the fee paid, or if the Department withdraws the report according to OAR 141-090-0040(3)(d), any resubmittal is subject to a new fee.

(4) If a person wishes to change information in or expand the geographic area covered by a report that is pending initial review by the Department, a revised report may replace the previous report in its entirety, without incurring an additional fee, if doing so does not change the Wetland Delineation Report Tier. If the Wetland Delineation Report Tier changes as a result of the revised report, the Department will notify the person of the fee balance to be paid prior to agency review. This provision does not apply to changes requested by the Department.

(5) If a person wishes to resubmit a rejected wetland delineation report, the report may be revised and resubmitted along with a new nonrefundable fee pursuant to Section (2).

(6) For applications in Tier 3 that exceed the costs outlined in Section (2), an additional hourly rate will be charged. The Department will notify the applicant of the initial cost estimate and seek approval prior to initiating work. The hourly rate will be based on the actual costs at the time of service.

(7) If a person wishes to request reissuance of a previously approved wetland delineation report, a reissuance request must be submitted within one year of the report’s expiration date, the request must be prepared by a wetland professional, and all previously delineated boundaries must remain unchanged. The request for reissuance and supporting materials are submitted to the Department along with a new nonrefundable fee as follows:

(a) Effective January 1, 2026 - $600

(b) Effective January 1, 2027 - $761

(d) Effective January 1, 2029 - $1,108

(e) Effective January 1, 2030 - $1,295

(8) If a person wishes to request an on-site wetland determination by the Department, a complete wetland determination request form may be submitted to the Department along with a nonrefundable fee as follows:

(a) Effective January 1, 2026 - $450

(b) Effective January 1, 2027 - $499

(d) Effective January 1, 2029 - $604

(e) Effective January 1, 2030 - $660

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 4-2025, amend filed 08/20/2025, effective 01/01/2026
DSL 1-2023, minor correction filed 02/14/2023, effective 02/14/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

Or. Admin. R. 141-090-0035 Standards and Requirements for Wetland Delineation Reports Submitted to the Department

(1) Report Submittal: All wetland delineation reports ("reports") submitted to the Department for review, approval, and a JD shall meet the technical requirements in OAR 141-090-0030 as well as the minimum standards and requirements in this rule. Reports must conform to the report format provided by the Department.

(2) All wetlands and other waters on the tax lot(s) or study area shall be included; the Department will determine whether or not they are waters of this state, subject to jurisdiction under OAR 141-085, 141-089, 141-093, 141-100, and 141-102.

(3) All report text, maps, remotely sensed imagery, ground photographs, and data forms must be legible.

(4) Reports must be submitted as:

(a) A single, unlocked PDF file with minimum resolution of 300 dpi and searchable text for the text portion of the report; or

(b) Paper hard copies, reproduced in color as applicable, unbound and must copy legibly.

(5) Required GIS data are described in the Delineation GIS Template and Data Description provided by the Department.

(a) Effective June 1, 2025, applicants are required to submit GIS data for Cowardin, HGM, Highest Measured Tide Line, Stream Centerline, Stream Ordinary High Water Line, Study Area Polygon, Tax Lot Polygon, Water Polygon, and Wetland Polygon, as applicable.

(b) Effective June 1, 2028, applicants are required to submit GIS data for all applicable layers in the Delineation GIS Template and Data Description.

(6) All submittals must include a fully completed and signed “Wetland Delineation Report Cover Form” (current form provided by the Department).

(7) Field Methods: The field investigation methods and level of detail required for making and documenting a PJD or JD and mapping wetlands and other waters of this state will vary by site. At a minimum:

(a) The entire study area whether a tax lot or portion thereof must be investigated during a field investigation.

(b) All wetlands and other waters must be identified, supported by data as appropriate, mapped, described, and classified to Cowardin system and class, HGM class and subclass, and ARSC type, as applicable. Separate polygons are required when more than one adjoining Cowardin class are present within the same wetland and when ARSCs are a portion of a larger wetland.

(c) Sufficient data and additional information shall be collected for any wetlands and other waters to enable the Department to: make a JD; determine location and size of ARSCs within mapped features; and determine if removal-fill permit requirements or exemptions apply.

(d) The wetland delineation must include sample plots that: represent the characteristics of each wetland present; represent each adjacent non-wetland(s); are paired and located close enough to either side of the wetland boundary to accurately substantiate the wetland boundary location; and are sufficient to characterize long or irregular boundaries.

(e) Wetland determination sample plot data must be provided for any portion of the study area where there is significant deviation from wetlands shown on the SWI unless the deviation is due to development that is so significant that it precludes data collection.

(f) At least one sample plot must be placed in all mapped hydric soil units within the study area.

(g) At least one sample plot must be placed in the lowest topographic areas or other locations most likely to contain wetlands.

(8) Study area boundaries, wetland and other water boundaries, and sample plots shall be identified on the ground. For actively managed sites, such as agricultural fields, golf courses, or recreational fields, where it may be impractical to leave the boundary and plot markers on the ground until the JD is issued, their mapped location must be readily relocated in the field by the applicant or consultant during a site visit by the Department.

(9) Because sites are highly variable and JD needs also vary, some situations may warrant deviation from the Field Methods requirements outlined in OAR 141-090-0035(7); for example, large geographic areas, linear projects, mosaics, and difficult wetland sites. In such situations, persons conducting wetland delineations are encouraged to consult with the Department prior to field work regarding appropriate methods.

(10) For farmed sites, field work should be guided by multiple information sources including at least three aerial photos from three different years (early growing season if possible), a detailed topographic survey, and information about site management activities such as irrigation schedules, subsurface drainage systems, and plowing frequency and depth.

(a) Wetland determination and delineation on farmed sites may need to follow procedures outlined in the Difficult Wetland Situations chapter of the appropriate regional supplement to the manual.

(b) On sites where the hydrology indicators may be missing or misleading due to natural or hydrologic manipulation, hydrologic monitoring may be needed to verify the absence or presence of wetland hydrology. When a hydrology monitoring method alternative to the manual standard is being pursued, the proposed method shall be submitted to the Department in writing for prior approval.

(11) Wetland and other water boundaries and sample plot locations must be mapped to the standards described in subsection (a) and (b) of this section.

(a) Except as provided in subsection (b) of this section, the map accuracy standard for wetland and other water boundaries and sample plot locations is within 3.28 feet (one meter) or as otherwise approved by the Department. The accuracy standard is not intended to establish a requirement for authoritative mapping, such as by a professional land surveyor, as described in ORS Chapter 672.

(b) The minimum delineation mapping accuracy standard for voluntary wetland ecosystem restoration projects (see OAR 141-089-0800 through 141-089-0815) that do not include compensatory mitigation activities or payment-in-lieu is 50 feet (14.8 meters).

(c) Mapping procedures may include professional land survey, GPS, measurements made from permanent features identified on a map or from a georeferenced aerial photograph or other remotely sensed imagery included with the report, or approximated when approved by the Department.

(12) Report Text: The report text must include:

(a) A detailed description of the site, its landscape setting, and previous and current land uses.

(b) A description, including the approximate year and extent, of any alterations that likely affected the presence, location or geographic boundaries of any wetlands or other waters on the site (e.g., surface drainage ditches, fill material, grading).

(c) Precipitation for the day(s) of and 2-week period preceding the field investigation(s), observed and percent of normal rainfall for the water year to date, and for the observed rainfall compared to the NRCS WETS table 30% and 70% chance exceedance values for each of the three months preceding the field investigation. An acceptable replacement for the NRCS WETS table is the Antecedent Precipitation Tool output (Environmental Protection Agency, USACE).

(d) The date(s) of the field investigation and site-specific methods used to conduct the field investigation, define study area boundaries, select sample plot locations, determine boundaries of wetlands and other waters, interpolate boundaries between paired plots, and make PJDs.

(e) A description of all wetland and other water polygons identified, including but not limited to:

(A) Area, in acres, for wetlands, ponds, reservoirs, and lakes; length and width, in feet, of streams, ditches, and reservoirs;

(B) Whether they extend off-site;

(C) Cowardin classification to the system and class level (describe if more than one adjoining class occur within the same wetland);

(D) Dominant HGM class and subclass;

(E) Stream flow duration of other waters;

(F) Type, size, and location of ARSCs that constitute a portion or all of a mapped feature;

(G) Whether it is a State-approved compensatory mitigation, if known.

(f) Deviation from the SWI, supported by wetland determination data or explanation of development in area mapped previously as wetlands or other waters.

(g) An explanation of how the location of the study area or tax lot boundaries, sample plot locations, wetlands, and other waters depicted on the delineation map(s) were mapped. Explanation must be provided for each method used for mapping and to which features each method applies.

(h) Additional information and rationale for all PJDs sufficient to demonstrate jurisdiction based on OAR 141-085-0515 criteria. This information can include, but is not limited to:

(A) Documentation of fish presence or absence in a stream or ditch, using published maps or reports or information from an authoritative source (e.g., Oregon Fish Habitat Distribution and Barrier Data Viewer, Oregon Department of Fish and Wildlife field staff);

(B) Information sufficient to determine whether an identified water feature is artificially created entirely from upland and the purpose for which it was created;

(C) Information about the water feature’s wetland status, size, average water depth at ordinary high water line, topographic and geomorphological location, mapped soil series and hydric status, and evidence of drainage (e.g., drain tiles, ditching);

(D) Hydrology monitoring data;

(E) Historical imagery;

(F) Data or other information on pre-disturbance conditions, such as excavation to an original (formed in situ) soil surface or identification of a former stream course;

(G) A detailed topographic survey;

(H) Data collected at a certain time of year;

(I) Additional plant species identification; or

(J) Documentation from a removal-fill permit including permit number.

(i) Results and conclusions of the investigation, including a table summarizing details in (12)(e) and (h).

(j) The following disclaimer: "This report documents the investigation, best professional judgment and conclusions of the investigator. It is correct and complete to the best of my knowledge. It should be considered a Preliminary Jurisdictional Determination of wetlands and other waters and used at your own risk unless it has been reviewed and approved in writing by the Oregon Department of State Lands in accordance with OAR 141-090-0005 through 141-090-0055."

(k) Appendices, as needed.

(13) Report Figures and Maps: All reports shall include the figures and maps listed in (13)(a) through (13)(g). All maps must include an outline of the study area boundary, a north arrow, a scale bar, and legend of all map elements. Any inset maps must include a scale bar.

(a) A location map, clearly naming geographical places, waterways, and major roads in the vicinity.

(b) Assessors tax lot map(s) for the entire study area, either downloaded as PDFs from the Oregon Department of Revenue’s “ORMAP” website or from a County Tax Assessor’s Office GIS data. Maps produced from GIS data must label each tax lot with the Assessors tax map number and tax lot number.

(d) The NRCS county soil survey map, including the map unit symbol, name, and hydric status for all soil series mapped within the study area.

(e) At least one recent aerial photograph, preferably taken early in the growing season or during other periods of peak hydrology, that includes the month and year of the photo (include at least three aerial photos from three different years for farmed sites).

(f) One or more delineation maps comprising the wetland and other waters determination or delineation, as appropriate, that meets the requirements in sections (14) through (16) of this rule.

(g) Ground-level color photographs of the site.

(14) The delineation map(s) must be legible and include:

(a) The boundaries of the tax lot(s) including tax map and tax lot label(s).

(b) The study area boundary in relation to the tax lot boundaries. For large tax lots with small study areas, a map in addition to the delineation map may be required to show the relationship between the study area and tax lot boundaries.

(c) An index map if a large project study area needs to be divided into more than one detail map for clarity or map scale issues. Full-page index map(s) shall show the exact location and extent of the areas shown on the detail maps in relationship to the larger study area.

(d) Locations of existing structures (unless clearly visible on a current aerial photo included as the map’s base map), such as culverts, bridges, tidegates, fencelines, powerlines, and roads, where practicable.

(e) Locations of fill, removals, water diversions, or other major alterations.

(f) Boundaries and labeling for mapped features, including:

(A) Boundaries of all wetlands and other waters;

(B) Where features extend off-site;

(C) Area, in acres, for wetlands, ponds, reservoirs, and lakes; length and width, in feet, of streams ditches, and reservoirs;

(D) Cowardin classification to system and class (map separately when more than one adjoining class is present within the same wetland) and HGM class and subclass;

(E) ARSC boundaries; and

(F) State-approved compensatory mitigation site boundaries, if known.

(g) Numbered sample plots corresponding to data forms (see section (16) of this rule).

(h) Photograph locations and direction of view.

(i) A statement of all mapping methods used and estimated mapping accuracy for the wetland and other waters boundaries and sample plot locations. Include statement of sources of remotely sensed imagery, topography, and tax lot data provided.

(15) The delineation map(s) shall be at a scale suitable for the study area size and for legibility. For most purposes, an appropriate map scale is 1 inch = 100 feet. For large study areas, a scale of 1 inch = 250 feet may be sufficient. Minimum map scale for a JD and for permitting purposes is subject to Department approval.

(16) Data Form Requirements: All reports shall include a wetland determination data form for each sample plot. The data form used must be the current version provided for the appropriate regional supplement to the manual. All wetland determination data forms must:

(a) Be fully completed;

(b) Include only data collected from a single sample plot on a single date (additional dates of hydrology data may be reported in the comments section or provided in a table) and for a single location (identifying latitude and longitude on data form);

(c) Include the full Latin botanical name and wetland indicator status of all plant species listed per the current National Wetland Plant List;

(d) Use standard soils terminology and abbreviations as established by the U.S. Department of Agriculture, Natural Resources Conservation Service; and

(e) Provide remarks for each disturbed or problematic wetland parameter per procedures outlined in the Difficult Wetland Situations Chapter of the appropriate regional supplement to the manual.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: 196.800 – 196.990, 196.600 – 196.665, 196.668 – 96.692 & 197.279
DSL 3-2024, amend filed 08/05/2024, effective 08/05/2024
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0040 Procedures for Review and Approval of a Wetland Delineation Report Submitted to the Department for a Jurisdictional Determination

(1) When a wetland delineation report is submitted to the Department for review, approval and a JD, the Department shall review the report (according to its established priorities) to ensure that:

(a) The work meets the technical requirements in OAR 141-090-0030;

(b) The report meets the standards and requirements in OAR 141-090-0035;

(c) There is sufficient information for the Department to make a JD, including the geographic extent and characteristics of any waters identified, as appropriate; and

(d) There is sufficient information for the Department to determine the removal-fill authorization requirements or exemptions that apply to the wetlands or other waters identified and/or the activities proposed.

(2) The Department shall complete an initial review of the report within 120 calendar days from receipt of the report and the fee.

(3) During or upon completion of the Department's review, the Department may take the following actions:

(a) Approve all or a portion of the report and PJD by providing a written JD to the landowner, agent, or applicant and the consultant, if any, in accordance with OAR 141-090-0025(10).

(b) Request missing information (report incomplete), clarification, or additional data (see OAR 141-090-0035(9), (10), and (12)(h)).

(A) The request will be made to the primary contact orally by telephone or in writing by e-mail or regular U.S. Mail.

(B) If the Department makes a written request to the primary contact, the Department will copy the request to the consultant, landowner, agent, and applicant, as appropriate.

(C) The primary contact shall be responsible for promptly informing the Department of any change in the primary contact during the Department's review process.

(d) Withdraw the report from further review if missing payment, if the landowner, agent, or applicant requests withdrawal or if otherwise determined by the Department;

(e) Require revisions of the delineation map(s) and the PJD based upon the report review, any additional information requested, and a site visit (if conducted) and provide a JD accordingly after consulting with the primary contact and report author, if different; or

(f) Reject the report with a written explanation to the applicant, consultant, landowner, and agent, as appropriate. Examples of reasons for rejecting a report include, but are not limited to:

(A) The work has not been completed according to the technical requirements in OAR 141-090-0030.

(B) The report does not, in the judgment of the Department, accurately reflect site conditions or provide sufficient information for a JD.

(C) The report contains major errors, omissions, or inconsistencies according to the standards and requirements in OAR 141-090-0035, such as but not limited to:

(i) On-site data are not collected (e.g., an off-site or reconnaissance level report);

(ii) No paired plots, or number of paired plots is clearly inadequate for length and complexity of wetland boundaries;

(iii) Data forms with major gaps (e.g., no soils data collected);

(iv) Wrong data form used;

(v) Clearly erroneous data or conclusions;

(vi) All water features are not mapped;

(vii) Permission for a requested site visit is not granted;

(viii) Standard report format is not followed (OAR 141-090-0035(1));

(ix) Report cannot be field verified because site preparation or construction has already commenced;

(x) The Department requests and conducts a site visit and the wetland boundaries and sample plots are not identified on the ground or cannot be accurately located by the consultant or applicant (see OAR 141-090-0035(8));

(xi) After the second written request for information or revisions, the resubmitted information does not address all of the Department’s comments or requests or introduces new errors; or

(xii) Additional clarifying information, requested revisions, or communication requesting additional time are not provided within 60 calendar days of the Department's written request.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0045 Duration, Revision, Expiration and Reissuance of Jurisdictional Determinations

(1) All JDs by the Department shall be in writing and, except as provided in section (2) of this rule, shall remain valid for a period of five years from the date of issuance. A JD may be revised by the Department prior to the expiration date if:

(a) A field investigation or new information reveals that site conditions or the geographic extent of waters of this state are not consistent with the information in a report or permit application submitted to the Department;

(b) Additional site information or data is provided voluntarily by an applicant, agent, or landowner to the Department;

(c) Additional information is provided to or obtained by the Department in conjunction with a request for reconsideration (OAR 141-090-0050(1)-(3)), a contested case hearing associated with an authorization application (ORS 196.825(6) and OAR 141-085-0575), a contested case hearing provided under OAR 141-090-0050(4)(a), or an appeal provided under OAR 141-090-0050(4)(b);

(d) Information is provided to or obtained by the Department in conjunction with an appeal to the U.S. Army Corps of Engineers of an Approved Jurisdictional Determination (33 CFR Parts 320, 326 and 331); or

(e) New information obtained by or provided to the Department shows a change in circumstances resulting in a change in the jurisdictional area.

(2) JDs that are issued in the form of a removal-fill authorization will expire after the project is complete or withdrawn. JDs made for an enforcement action will expire after the case is closed.

(3) Upon expiration, a report and JD are no longer valid for determining whether a state removal-fill authorization may be required.

(4) If agency approval is still needed or desired and a wetland professional determines that the wetland boundaries have not changed, the Department may reissue the JD one time for five years within one year of the expiration date.

(5) To request the reissuance of a JD within one year of the expiration date, the landowner, agent, or applicant with landowner permission must submit information prepared by a wetland professional to the Department, as listed in (a) through (i).

(a) A new fully completed wetland delineation/determination report cover form and a request for reissuance of a jurisdictional determination form, referencing the previously approved wetland delineation number.

(b) Date of the field inspection and the name of the person conducting the field inspection.

(c) A concise description of any changes in land use, hydrology, and management of the site and surrounding area relevant to the location and extent of the wetlands and other waters within the study area since the last JD.

(d) A summary of any relevant changes to the manual that have occurred since the most recent JD was issued and a discussion of the effect of those changes on the JD.

(e) A description of the method used to re-locate the wetland and other waters boundary(ies) in the field and a summary of the supporting evidence used to conclude that the location and extent of wetlands and other waters is the same.

(f) A delineation map(s) that meets the requirements in OAR 141-090-0035. The previously approved map can be used if the current mapping requirements are met and the study area boundary is the same.

(g) A recent aerial photograph with the study area boundary identified.

(h) Any figures that may have changed from the previously approved wetland delineation report, such as a smaller study area.

(i) Completed data sheets from representative sample plots illustrating the unchanged wetland and other waters conditions.

(6) Upon receipt of the reissuance information outlined in subsections (5)(a) through (i), the Department shall review the information within 120 days of receipt and may take the following actions:

(a) Reissue the original report for another 5 years;

(b) Request missing information, clarification, or additional information;

(d) Withdraw the request for reissuance from further review if determined to be ineligible, missing additional or clarifying information, or requested information is not provided within 60 calendar days of the Department's written request; or

(e) Disagree with the conclusion that the wetland and other waters boundaries have not changed and require a new report that satisfies the requirements of OAR 141-090-0035 and payment of the fee described in OAR 141-090-0032 for review of a new delineation report.

(7) At the discretion of the Department and within staffing ability, a landowner can request the Department conduct a site visit to determine if a recently expired JD can be reissued or if a new report is required. If only minor boundary changes have occurred, new boundaries may be flagged at the discretion of staff during a site visit and the landowner shall produce and submit a new map that reflects the changes and meets the mapping requirements in OAR 141-090-0035.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0050 Request for Reconsideration, Contested Case, and Appeal

(1) A JD by the Department may be reconsidered upon written request to the Department by the landowner, agent, or applicant with landowner approval within six months of the date of the JD (date the letter or form was signed by the Department). The request for reconsideration initiates an informal review process.

(2) New information may be provided by the applicant, landowner, agent or the Department, or may be requested by the Department, as part of the reconsideration process.

(3) A reconsideration may result in a modified JD or in the reaffirmation of the original JD.

(4) In the event that the landowner, agent, or applicant with landowner permission disagrees with the reconsideration decision, the applicant, landowner or agent may:

(a) Request a contested case proceeding pursuant to ORS 183.413 through 183.470 by submitting a written request so that it is received by the Department within 21 calendar days of the reconsideration decision; or

(b) Request an appeal by submitting a written request so that it is received by the Department within 21 calendar days of the reconsideration decision. The appeal option is available only when the disagreement is over a wetland determination or delineation that has been the subject of reconsideration decision by the Department. The appeal option is not available for ordinary high water line or highest measured tide determinations and does not involve a review of whether the wetland or other water is subject to state regulation.

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

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

(C) When an applicant 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.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Or. Admin. R. 141-090-0055 Effective Date

These rules become effective on June 1, 2023.

History

Statutory/Other Authority: ORS 196.845 & 196.692
Statutes/Other Implemented: ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 & 197.279
DSL 2-2023, amend filed 05/05/2023, effective 06/01/2023
DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01

Division 91 CHARGES FOR COPIES AND SERVICES

Or. Admin. R. 141-091-0005 Fees

Unless otherwise stated by rule, the Department of State Lands shall make charges for copies and services as follows:

(1) Per image for Xerox copies:

(a) State agencies — $0.05;

(b) General public for material from Department files, copies made by Department staff — $0.25;

(d) Parties in contested cases, first 20 pages — $0.25 each;

(e) Additional pages — $0.20;

(2) Transcripts, reports, specialized maps, photos, etc. available through the Department: a charge approximating the cost of reproduction and handling.

(3) Certified copies of Department records, per certificate — $5. The charge includes the first four pages of document copied. Additional amount for each page in accordance with section (1).

History

Statutory/Other Authority: ORS 192 & 273
DSL 10-2008, f. & cert. ef. 12-10-08
LB 11-1982, f. & ef. 12-20-82

Or. Admin. R. 141-091-0010 Additional Fees

An additional charge shall be added for actual cost of staff time required for research.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 192 & 273
LB 11-1982, f. & ef. 12-20-82

Or. Admin. R. 141-091-0015 Billing

Charges shall be paid in cash at the time of request for copies except that at the discretion of the Director or any Assistant Director, billing may accompany mailed copies. State agencies or other governmental bodies may be billed for copies.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 192 & 273
DSL 10-2008, f. & cert. ef. 12-10-08
LB 5-1985, f. & ef. 7-24-85
LB 11-1982, f. & ef. 12-20-82

Or. Admin. R. 141-091-0020 Fees Waived

Charges may be waived in the following instances:

(1) Routine requests from state, local, and federal agencies;

(2) When charges would total $.50 or less;

(3) Copies of current leases, permits, etc., requested by lessee, permittee, mortgagor, their insurance company, financial institution, etc.;

(4) Documents needed by applicants for leases and permits, etc., such as administrative rules, lease forms, application forms.

History

Statutory/Other Authority: ORS 192 & 273
Statutes/Other Implemented: ORS 192 & 273
LB 11-1982, f. & ef. 12-20-82

Division 92 SCREENING AND SELECTION PROCEDURES FOR PERSONAL SERVICES CONTRACTS ENTERED INTO BY THE DIVISION OF STATE LANDS

Or. Admin. R. 141-092-0020 Introduction

The following procedures for screening and selecting a contractor for a personal services contract are adopted as the procedures of the Division of State Lands, including the South Slough Estuarine Sanctuary and the Natural Heritage Advisory Council.

History

Statutory/Other Authority: ORS 273 & 279
Statutes/Other Implemented: ORS 273 & 279
LB 13-1982, f. & ef. 12-20-82

Or. Admin. R. 141-092-0021 Policy

(1) The Division of State Lands will contract for consultant services when the specialized skills, knowledge, and resources are not available within the Division; when the work cannot be done in a reasonable time with the Division’s own work force; when an independent and impartial evaluation of a situation is required by a consultant with recognized professional expertise and stature in a field; or when it will be less expensive to contract for the work. Contracts will be let only after approval by the Director, Deputy Director, or Assistant Director for Finance and Administration.

(2) Agreements for services of a consultant who is a member of the Public Employes’ Retirement System and who is employed in another department will normally be in the form of an interagency agreement. Exceptions may be granted by the Director, Deputy Director, or Assistant Director when it is shown that such an agreement is impractical and that the work will be done strictly on the consultant’s own time. Such exceptions will be processed as a regular personal services contract.

(3) This procedure will be used in all cases except when the Director, Deputy Director, or Assistant Director determines that an emergency will be subject to later confirmation.

History

Statutory/Other Authority: ORS 273 & 279
Statutes/Other Implemented: ORS 273 & 279
LB 6-1985, f. & ef. 7-24-85
LB 13-1982, f. & ef. 12-20-82

Or. Admin. R. 141-092-0025 Definitions

(1) “Agency” means the Division of State Lands.

(2) “Assistant Director” means any of the Assistant Directors for programs within the Division of State Lands.

(3) “Consultant” or “Contractor” means an individual or firm that has been found qualified to do specified types of work for the Division of State Lands and with whom the Division may contract.

(4) “Deputy Director” means the Deputy Director of the Division of State Lands.

(5) “Director” means the Director of the Division of State Lands.

(6) “Program Manager” means the Manager for the South Slough National Estuarine Sanctuary or the Manager for the Natural Heritage Advisory Council.

History

Statutory/Other Authority: ORS 273 & 279
Statutes/Other Implemented: ORS 273 & 279
LB 6-1985, f. & ef. 7-24-85
LB 13-1982, f. & ef. 12-20-82

Or. Admin. R. 141-092-0030 General

(1) A contract file will be maintained by the Finance and Administration Section. The file will contain a complete record of the actions involved in developing and administering the contract including the following:

(a) Statement of agency jurisdiction for the contract;

(b) A copy of the request for proposal;

(d) Method used to advertise/notify other possible prospective contractors;

(e) A copy of each proposal;

(f) Method of evaluating proposals;

(g) Record of negotiations and results;

(h) Basis for awarding contract;

(i) Resulting contract, if awarded.

(2) All contracts of $2,500 per agreement or less should include:

(a) The names of firms or individuals and cost estimates/quotations considered;

(b) The basis for selection of the contractor;

History

Statutory/Other Authority: ORS 273 & 279
Statutes/Other Implemented: ORS 273 & 279
LB 13-1982, f. & ef. 12-20-82

Or. Admin. R. 141-092-0035 Procedure and Responsibility

(1) Director, Deputy Director, or Assistant Director or Program Manager determines the agency requires the services of a consultant:

(a) Prepares agency justification for contract;

(b) Prepares a cost estimate for contract;

(d) Completes screening and selection procedure and selects a contractor.

(2) Assistant Director for Finance and Administration completes the following:

(a) Forwards draft of proposed contracts that total $25,000 or more to Attorney General for review of legal sufficiency unless contract form has previously been approved by Attorney General;

(b) Receives Attorney General’s approval of contract’s legal sufficiency;

(d) Signs contract, or obtains signature of the Director;

(e) If contract is under $1,000, reviews and sends one copy to Executive Department Budget and Management Division for filing; retains copy for accounting purposes; copy for contract file; forwards one copy to contractor;

(f) If contract is for over $1,000, reviews and sends four copies to Department of Administrative Services for approvals;

(g) Receives approved contract, three copies from Executive Department, forwards one copy to accounting for payment purposes; forwards one copy of contract to contractor; and retains one copy of contract with original signatures for agency contract file.

History

Statutory/Other Authority: ORS 273 & 279
Statutes/Other Implemented: ORS 273 & 279
LB 6-1985, f. & ef. 7-24-85
LB 13-1982, f. & ef. 12-20-82

Division 93 ADMINISTRATIVE RULES GOVERNING THE ISSUANCE AND ENFORCEMENT OF GENERAL PERMITS WITHIN WATERS OF THIS STATE

Or. Admin. R. 141-093-0100 General

(1) Special Headings and Fonts. Where headings, special fonts or double-spacing are used, they are for the convenience of the user only and have no substantive effect.

(2) Applicability of OAR 141-085. Unless otherwise specified under 141-093, the provisions of 141-085 apply to General Permits (GPs).

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0103 Agency Process and Standards for Establishing General Permits

(1) General Permits Established by Rulemaking. GPs are issued by rule on a statewide basis or a geographic basis.

(2) General Permits Established by Order. GPs are issued by order for an applicant or group of applicants to cover activities that are substantially similar in nature or ongoing, and have predictable effects.

(3) Periodic Review. The GPs will be periodically reviewed for compliance with the review standards set forth in ORS 196.600 through 196.905 and the Department must find that each GP will not result in long-term harm to water resources of this state.

(4) Amend or Rescind. The Department will amend or rescind any GP upon a determination that the activities conducted under the GP have resulted in or would result in unacceptable individual or cumulative environmental effects or long-term harm to the water resources of this state.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0104 Project Applicability

(1) Applicability. This rule sets forth conditions under which a person may, without an individual removal-fill permit from the Department, place or remove material within waters of this state, excluding State Scenic Waterways, as defined in OAR 141-085 for the purposes set forth in a GP.

(2) Department Determination of Eligibility. To be eligible for a GP, a project must comply with the general conditions described in OAR 141-093-0135 as well as the individual GP’s purpose, eligibility, authorized activities and activity-specific conditions. In the event a dispute arises as to the applicability of a GP to any project application, the Department will make the final determination.

(3) Thresholds and Best Management Practices (BMPs). BMPs necessary to comply with the general conditions are not included in the thresholds under each GP.

(4) Individual Permit May Be Required. The Department may require an individual removal-fill permit for a project that would otherwise be authorized by a GP if:

(a) The activity conducted under the permit may have unpredictable effects or outcomes which may result in unacceptable individual or cumulative environmental effects to waters of this state; or

(b) The activity might result in long-term harm to the water resources of this state; or

(c) If the Oregon Department of Fish and Wildlife, the Oregon Department of Environmental Quality or the affected local land use planning department request that the Department do so.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0105 Application Requirements and Completeness Review for Authorizing Projects under a General Permit

(1) Authorization Required. Unless otherwise specified, a separate application must be submitted to the Department before starting any project covered by a GP.

(2) Required Information. A complete, signed application must be submitted on forms provided by the Department. The application must contain all applicable information set forth in OAR 141-085-0550. An approved, unexpired wetland delineation is required when wetlands are proposed for impact, unless otherwise approved by the Department.

(3) Applicant Signature Required. The applicant signature is required. As used in this section, “applicant” means a person who has the authority and responsibility to fully execute the terms and conditions of an authorization issued under these rules. The applicant becomes the authorization holder. The OAR 141-085-0510(1) definition of “applicant” does not govern use of the term in this Division.

(4) Fee. Any person proposing to conduct an activity under a GP must pay all applicable fees in accordance with OAR 141-085-0545, unless otherwise specified in a specific GP.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 4-2025, amend filed 08/20/2025, effective 01/01/2026
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0107 Completeness and Eligibility Review for Authorizing Projects under a GP

(1) Initial Review. The Department will review the application within 15 calendar days (unless otherwise stated in the administrative rules for a specific GP), of agency receipt of the application to determine whether the application is complete and the project is eligible for the GP.

(a) Complete and Eligible Application. A complete application is one that contains all the information required in the Department’s application. An eligible project is one that meets the eligibility requirements, activity-specific application requirements and authorized activities listed under the GP.

(b) Incomplete Application Notification. If the Department determines that the application is incomplete or deficient, the Department will notify the applicant in writing and list the missing or deficient information. The applicant may resubmit the entire amended package for reconsideration within 120 calendar days from date of the Department’s notice, unless instructed by the Department to do otherwise. Submission of a new or amended application package starts a new initial review period.

(c) Ineligible Projects. If the review of the application results in a determination that the project is ineligible for a GP, the applicant will be notified and informed of the reason for ineligibility. The applicant may then either revise the project and resubmit the application for reconsideration or apply for an Individual Permit under OAR 141-085 within 120 calendar days from date of agency determination.

(2) Timeframe for Resubmittal. If a revised application is not resubmitted within 120 calendar days of an incompleteness or ineligibility determination, the Department may administratively close the application. If the Department closes the file under this circumstance, the Department will retain the application fee. A subsequent application for the same or similar project will require payment of an application fee.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0110 Public Review Process for Authorizing Projects under a GP

(1) Circulation of the Application for Public Review. Once the application has been deemed complete, the Department will provide notification of the availability of the application for review either by U.S. mail or electronically (e.g., facsimile, e-mail, posting on the internet) to adjacent property owners, watershed councils, public interest groups, affected local government land use planning departments, state agencies, federal agencies and tribal governments in the geographic area affected by the permit.

(2) Copies of the Application by Request. The Department will furnish to any member of the public, upon written request and at the expense of the member of the public, a printed copy of any application.

(3) Deadline for Receipt of Public Comments. All recommendations and comments regarding the application must be submitted in writing to the Department within the period established by the Department, but not more than 15 calendar days from the date of the notice. If a commenter fails to comment on the application within the comment period, the Department will assume the commenter has no objection to the project.

(4) Department Review of Public Comments. The Department will review and consider substantive comments received during the public review period. The Department may request the applicant to provide additional information to address comments.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0115 Department Determinations and Considerations in Evaluating Applications to Authorize Projects under a GP

(1) Departmental Final Review. The Department will evaluate the information provided in the application, conduct its own investigation, and consider the comments submitted during the public review process to determine whether or not to issue an authorization under a GP. The Department will render a decision within 40 calendar days of receipt of a complete application, unless otherwise stated in the administrative rules for a specific GP.

(2) Extension of Decision Deadline. The applicant may request additional time to respond to comments or to satisfy other requirements. The applicant and the Department may agree to extend the timeline for making a final authorization decision. If no agreement is reached, the Department will make a final authorization decision within the original time period specified in these rules.

(3) Effective Date of Review Standards. The Department may consider only standards and criteria in effect on the date the Department receives the complete application or renewal request.

(4) Department Determinations. The Department will issue an authorization under a GP if it determines the project described in the application:

(a) Has independent utility;

(b) Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 through 196.990;

(c) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation, when project is on state-owned lands; and

(d) Meets the purpose and eligibility requirements in the GP.

(5) Department Considerations. In determining whether to issue an authorization under a GP, the Department will consider all of the following:

(a) The public need for the proposed fill or removal and the social, economic and other public benefits likely to result from the proposed fill or removal. When the applicant for an authorization under a GP is a public body, the Department may accept and rely on the public body’s findings as to local public need and local public benefit;

(b) The economic cost to the public if the proposed fill or removal is not accomplished;

(d) The availability of alternative sites for the proposed fill or removal;

(e) Whether the proposed fill or removal conforms to sound policies of conservation and would not interfere with public health and safety;

(h) Whether the proposed fill or removal is for stream bank protection; and

(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill or removal in the manner set forth in ORS 196.800.

(6) Alternatives Analysis. The applicant bears the burden of providing the Department with the alternatives analysis used to derive the practicable alternative that has the least reasonably expected adverse impacts on waters of this state. The alternatives analysis must provide the Department all the underlying information necessary to support its considerations under section (5) of this rule.

(7) Fills in an Estuary for Non-Water Dependent Use. A “substantial fill” in an estuary is any amount of fill regulated by the Department. No authorizations will be issued for a substantial fill in an estuary for a non-water dependent use unless all of the following apply:

(a) The fill is for a public use;

(b) The fill satisfies a public need that outweighs the harm, if any, to navigation, fisheries and recreation; and

(8) Written Findings. In the following cases, the Department will prepare written findings to document a decision for an authorization under a GP:

(a) Permit denial;

(b) Fill of two acres or more in wetlands;

(d) Removal from estuaries of more than 10,000 cubic yards of material (except for maintenance dredging);

(e) Placement of greater than 2,500 cubic yards of riprap in coastal streams or estuaries;

(f) Removal-fill in the Oregon Territorial Sea in accordance with Statewide Planning Goal 19-Ocean Resources; and

(g) Any permit decision that is contrary to the final decision recommendation of a state agency.

(9) Marine Reserves and Marine Protected Areas. The Department will only authorize a removal-fill activity within an area designated by the State Land Board as a marine reserve or a marine protected area if the removal-fill activity is necessary to study, monitor, evaluate, enforce, protect or otherwise further the studying, monitoring, enforcement and protection of the reserve or marine protected area.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0120 Expiration

Authorizations under a General Permit may be kept active for up to five years or as allowed under a specific GP provided the applicable annual renewal fees per OAR 141-085-0545 are received by the Department before the anniversary date of the authorization.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 4-2025, amend filed 08/20/2025, effective 01/01/2026
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0125 Enforcement

Failure to adhere to the terms of any authorization issued under this division is a violation of the Removal-Fill Law and may be subject to appropriate enforcement in accordance with OAR 141-085.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0130 Appeal Process for Authorizations Issued under General Permits

The provisions of OAR 141-085-0575 and 141-085-0580 are incorporated here by reference.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0135 General Conditions

Unless otherwise modified by a specific GP or an authorization issued under a GP, the following general conditions apply:

(1) Responsible Party. The person listed on the application as the applicant is responsible for the activities of all contractors or other operators involved in project work covered by the authorization under the GP.

(2) Copy of Authorization Available for Inspection. A copy of the authorization must be available at the work site whenever authorized activities are being conducted.

(3) Site Access Required. Employees of the Department and all authorized representatives must be permitted access to the project area at all reasonable times for the purpose of inspecting work performed under this authorization.

(4) Archeological Resources. If any archeological sites, resources or artifacts are discovered during construction, work must immediately cease and the State Historic Preservation Office must be contacted.

(5) ODFW Fish Passage Requirement. The authorized activity must meet Oregon Department of Fish and Wildlife requirements for fish passage before commencing the project (ORS 509.580 through 509.901 and OAR 635-412-0005 through 635-412-0040).

(6) Hazards to Recreation, Navigation or Fishing. The activity must be timed not to interfere with or create a hazard to recreational or commercial navigation or fishing.

(7) Work Period in Jurisdictional Areas. Fill or removal activities below the Ordinary High Water Line must be conducted when recommended by ODFW, unless otherwise coordinated with Oregon Department of Fish and Wildlife and approved in writing by DSL. Work is prohibited when fish eggs are present within the reach where the authorized activities are being conducted.

(8) Pre-Construction Resource Area Fencing or Flagging. Prior to any site grading, the boundaries of any avoided wetlands, waterways and riparian areas adjacent to the project site must be surrounded by noticeable construction fencing or flagging. There will be no vegetation removal or heavy equipment within marked areas. The marked areas must be maintained during construction of the project and be removed immediately upon project completion.

(9) Erosion Control Methods. The following erosion control measures must be installed at the construction site before construction and maintained during and after construction to prevent erosion and minimize movement of soil into waters of this state:

(a) All exposed soils must be stabilized during and after construction in order to prevent erosion and sedimentation;

(b) Filter bags, sediment fences, sediment traps or catch basins, leave strips or berms, or other measures must be used to prevent movement of soil into waterways and wetlands;

(c) To prevent erosion, use of compost berms, impervious materials or other equally effective methods, must be used to protect soil stockpiled during rain events or when the stockpile site is not moved or reshaped for more than 48 hours;

(d) Unless part of the permanent fill, all construction access points through, and staging areas in, riparian and wetland areas must use removable pads or mats to prevent soil compaction. However, in some wetland areas under dry summer conditions, this requirement may be waived upon approval by DSL. At project completion, disturbed areas with soil exposed by construction activities must be stabilized by mulching and native vegetative plantings or seeding. Sterile grass may be used instead of native vegetation for temporary sediment control if native vegetation is unavailable. If soils are to remain exposed for more than seven days after completion of the permitted work, they must be covered with erosion control pads, mats or similar erosion control devices until vegetative stabilization is installed;

(e) Where vegetation is used for erosion control on slopes steeper than 2:1, tackified seed mulch must be used so the seed does not wash away before germination and rooting;

(f) Dredged or other excavated material must be placed on upland areas having stable slopes and must be prevented from eroding back into waterways and wetlands;

(g) Erosion control measures must be inspected and maintained as necessary to ensure their continued effectiveness until soils become stabilized; and

(h) All erosion control structures must be removed when the project is complete and soils are stabilized and vegetated.

(10) Hazardous, Toxic, and Waste Material Handling. Petroleum products, chemicals, fresh cement, sandblasted material and chipped paint, wood treated with leachable preservatives or other deleterious waste materials must not be allowed to enter waters of this state. Machinery refueling is to occur at least 150 feet from waters of this state and confined in a designated area to prevent spillage into waters of this state. Barges must have a containment system to effectively prevent petroleum products or other deleterious material from entering waters of this state. Project-related spills into waters of this state or onto land with a potential to enter waters of this state must be reported to the Oregon Emergency Response System (OERS) at 1-800-452-0311.

(11) Raising or Redirecting Water. The project must not cause water to rise or be redirected and result in damage to structures or property.

(12) Waste Disposal. Old piling and other waste material generated by the project must be disposed of in an appropriate disposal facility. There must be no temporary storage of piling or other waste material below top of bank, in wetlands; in a Federal Emergency Management Administration designated floodway, or in an area historically subject to landslides.

(13) DSL May Halt or Modify. DSL retains the authority to temporarily halt or modify the project in case of unforeseen damage to natural resources.

(14) Spoil Disposal. Spoil materials, not authorized used in the project for placement in waters of this state, must be placed in an upland location. Spoil materials used in the project must be included in the cumulative removal-fill calculation for the activity.

(15) Additional Conditions. The Department may impose additional conditions, if necessary, to eliminate and reduce the reasonably expected adverse impacts of a project to waters of this state.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0140 Transportation-Related Structures - Purpose

This General Permit (GP) authorizes removal-fill for certain activities related to existing transportation structures.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 37-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0141 Transportation-Related Structures - Eligibility Requirements

(1) Definitions. For the purposes of this rule:

(a) “Entrenchment ratio” is the ratio between the flood prone width and the width at the elevation at which a stream first reaches the top of its natural banks and overflows.

(b) “Floodplain” means that portion of a river valley, adjacent to the channel, which is built of sediments deposited during the present regimen of the stream and which is covered with water when the waterway overflows its banks at flood stage.

(c) “Flood Prone Area” means the area adjacent to the stream that is inundated or saturated when the elevation of the water is at twice the maximum depth at bankfull stage or three times the average bankfull depth.

(d) “Functional floodplain” means the flood prone area up to 2.2 times the width at OHWL for streams with an entrenchment ratio of 2.2 or greater, and the entire width of the flood prone area for streams with an entrenchment ratio less than 2.2. This area may be reduced by the presence of natural constrictions, flow regulation, or encroachment of built infrastructure.

(2) Thresholds. To be eligible a project must be limited to no more than:

(a) In waters of this state, other than wetlands, a total of five thousand (5,000) cubic yards of material filled, removed or altered, for the entire project. Up to one thousand (1,000) cubic yards of the allowable 5,000 cubic yards of material may be used for streambank stabilization; and

(b) One-half (0.5) acre of permanent impact to wetlands is allowed for the entire project.

(3) No impacts to Aquatic Resources of Special Concern. The project must not involve impacts to Aquatic Resources of Special Concern. Aquatic Resources of Special Concern include alkali wetlands and lakes, bogs, cold water habitat, fens, hot springs, interdunal wetlands, kelp beds, mature forested wetlands, native eelgrass beds, off-channel habitats (alcoves and side channels), ultramafic soil wetlands, vernal pools, wet prairies, wooded tidal wetlands, and others, as determined by the Department.

(4) Notwithstanding the requirements of OAR 141-093-0105 through OAR 141-093-0135, the following projects will not require compensatory mitigation, and the applicant may use best professional judgment to assess functions and values if the proposed design meets all of the following requirements:

(a) Widening, replacing, or maintaining an existing culvert or bridge

(A) A clear, unobstructed opening above the expected depth or scour of the streambed within the functional floodplain must be maintained;

(B) A single span bridge or culvert must span 1.5 times the width of the stream at the ordinary high water line (OHWL), or wider;

(C) A multiple span structure must span 2.2 times the width of the stream at the OHWL, or wider, without including the width of interior supports;

(D) Conduits must be installed within road fill, if necessary, to allow water to flow across the floodplain;

(E) All artificial constrictions within the functional floodplain must be removed that are not otherwise a component of the culvert or bridge, unless otherwise approved by the Department;

(F) Streambanks and newly exposed floodplains must be reshaped to either match or be flatter than upstream and downstream contours;

(G) Streambank stabilization methods are limited to techniques in ORS 141-089-0730 through 141-089-0735, plus the minimum amount of rock necessary to protect the integrity of the culvert or bridge. Rock on streambanks above OHWL must incorporate soil and woody vegetation;

(H) Streambanks and newly exposed floodplains must provide or be planted to achieve a density of at least 1 live native shrub or tree per 6 linear feet, except under a bridge or within areas needed for site distance and safety, unless otherwise approved by the Department; and

(I) ODFW fish passage requirements for adult and juvenile fish must be met.

(b) Restoring natural fluvial processes if the proposed design meets all the following requirements:

(A) The activity is integrally related to widening, replacing, maintaining, or removing an existing structure;

(B) Limited to use of materials sized appropriately for the system and that mimic natural substrate found within the system, unless otherwise required for fish passage;

(A) Reestablishment may expand the toe of pre-existing structure fill for no more than 50 feet of channel when necessary to maintain a 2:1 fill slope or steeper. At least 80% of the previous channel width at OHWL must be retained.

(B) Streambank stabilization methods are limited to techniques in ORS 141-089-0730 through 141-089-0735, plus the minimum amount of rock necessary to protect the integrity of the road and stabilize the toe of the slope. Rock on streambanks above OHWL must incorporate soil and woody vegetation, unless otherwise approved by the Department.

(C) A reestablished streambank must be planted to achieve a density of at least 1 live native shrub or tree per 6 linear feet, unless otherwise approved by the Department.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & ORS 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & ORS 196.795 - 196.990
DSL 11-2019, minor correction filed 04/16/2019, effective 04/16/2019
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 42-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 38-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0145 Transportation-Related Structures - GP-Specific Application Requirements for Authorizing Projects

(1) Compensatory Mitigation. Unless otherwise approved by the Department, compensatory mitigation options are:

(a) Mitigation bank credit purchase from a Department-approved mitigation bank with a service area that includes the proposed removal-fill site and that meets the eligibility requirements for CM outlined in ORS 141-085-0690;

(b) In-lieu fee credit purchase that meets the eligibility requirements for CM outlined in ORS 141-085-0690; and

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 43-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 39-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0150 Transportation-Related Structures - Authorized Activities

(1) Existing Structures. Widening, replacing, expanding use, maintaining and removing existing:

(a) Roads;

(b) Bridges;

(d) Culverts;

(e) Boat ramps; and

(f) Airport runways and taxiways.

(2) Integrally-Related Activities. Activities integrally related with existing roadway structures, such as geo-technical borings, signs, guardrails and maintenance of stormwater facilities.

(3) Increase in Scour Protection. Providing larger footprint for new scour protection and bank stabilization associated with projects listed above.

(4) Restoring Fluvial Processes. Restoration or enhancement of natural stream health, including fluvial processes, associated with projects listed above.

(5) Fish and Wildlife Habitat Enhancement. Providing fish or wildlife passage or habitat in conjunction with transportation-related structures.

(6) Grade Control. Installing grade control where necessary to prevent channel headcut migration for the projects listed above.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 40-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0151 Transportation-Related Structures - GP-Specific Conditions

(1) General Conditions Apply. All the requirements, procedures and conditions set forth in OAR 141-093-0135 apply to this GP.

(2) Work Area Isolation. The work area must be isolated from the water during construction. All structures and materials used to isolate the work area must be removed immediately following construction and water flow returned to pre-construction conditions. All fish must be salvaged from the isolated area in accordance with Oregon Department of Fish and Wildlife requirements.

(3) Proof of Mitigation Purchase. Before an authorization is approved, the Department must have proof of purchase of wetland mitigation bank credit, in-lieu fee credit purchase, or cash payment of the correct in-lieu amount.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 41-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0155 Minor Removal-Fill Impacts - Purpose

Non-Tidal Wetland Impacts. This General Permit (GP) authorizes removal-fill activity in certain non-tidal wetlands subject to the terms and conditions contained herein.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 44-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0160 Minor Removal-Fill Impacts - Eligibility Requirements

(1) Threshold. The removal-fill activity in certain non-tidal wetlands must not exceed two-tenths (0.20) of an acre for the entire project.

(2) No Impact to Tidal Wetlands. The project must not involve impacts to tidal wetlands.

(3) No Impacts to Waterways. The project must not involve impacts to any non-wetland waters.

(4) No Impacts to ESH or State Scenic Waterways. The project must not involve impact to Essential Indigenous Anadromous Salmonid Habitat or State Scenic Waterway-designated areas.

(5) No Impacts to Aquatic Resources of Special Concern. The project must not involve impacts to Aquatic Resources of Special Concern. Aquatic Resources of Special Concern include alkali wetlands and lakes, bogs, cold water habitat, fens, hot springs, interdunal wetlands, kelp beds, mature forested wetlands, native eelgrass beds, off-channel habitats (alcoves and side channels), ultramafic soil wetlands, vernal pools, wet prairies, wooded tidal wetlands, and others, as determined by the Department.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 45-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0165 Minor Removal-Fill Impacts - Compensatory Wetland Mitigation

Unless otherwise approved by the Department, compensatory mitigation options are:

(1) Bank credit purchase that meets the eligibility requirements for CM outlined in ORS 141-085-0690;

(2) In-lieu fee credit purchase that meets the eligibility requirements for CM outlined in ORS 141-085-0690; and

(3) Payment to the Department’s payment in-lieu program

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019
DSL 46-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0170 Minor Removal-Fill Impacts - Authorized Activities

This GP authorizes a person to conduct removal-fill activity in certain non-tidal wetlands in an amount equal to or less than two-tenths (0.20) of an acre per project.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 47-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0175 Minor Removal-Fill Impacts - GP-Specific Conditions

(1) General Conditions Apply. All the requirements, procedures and conditions set forth in OAR 141-093-0135 apply to this GP.

(2) Proof of Mitigation Purchase. Before an authorization is approved, the Department must have proof of purchase of wetland mitigation bank credit, in-lieu fee credit purchase, or payment of the correct in-lieu amount.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 48-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 3-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-093-0180 Jackson County Vernal Pools - Purpose

The purpose of this General Permit (GP) is to provide an expedited authorization for certain projects that involve removal-fill activities in vernal pool wetlands in Jackson County, Oregon. This GP includes a mitigation framework to address the Department’s interest in conserving and maintaining the rare species function of vernal pool wetlands. It is also in alignment with the regulatory tools established by the U.S. Fish and Wildlife Service (USFWS) and the U.S. Army Corps of Engineers in administering the federal Endangered Species Act (ESA) and Clean Water Act, respectively. This GP authorizes removal-fill in vernal pool wetlands and other specific waters, as well as removal-fill activities necessary to conduct mitigation.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 49-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0185 Jackson County Vernal Pools - Expiration

This GP will expire on January 1, 2026 or when a combined total of 60 acres of vernal pool wetlands (up to 300 acres of vernal pool habitat complex) or other associated waters have been impacted, whichever occurs first. Upon expiration, the GP may be reviewed and modified or reissued.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 11-2020, amend filed 11/04/2020, effective 12/01/2020
DSL 50-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2016, f. & cert. ef. 2-8-16
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0187 Jackson County Vernal Pools - Review Process for Authorizing Projects

The Department shall review applications for this GP according to OAR 141-093-0100 through 141-093-0135, with the following exceptions:

(1) Initial Review. The Department will review the application within 30 calendar days of agency receipt of the application to determine whether the application is complete and the project is eligible for this GP.

(2) Departmental Final Review. The Department will render a decision within 60 calendar days of receipt of a complete application.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 51-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0190 Jackson County Vernal Pools - Definitions

The following definitions are used in this GP, in addition to those in OAR 141-085-0510.

(1) “Combination Credits” means those credits that have been approved by the Department as wetland mitigation credits and by the USFWS as ESA species credits.

(2) “Drought Year” means a season in which precipitation prior to and during the growing season is less than the 30 percent probability level documented in the WETS table for the Medford weather station. The procedure for determining “below normal rainfall” is found in the September 2008 Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region, available on the Department Web site.

(3) “Permittee Responsible Mitigation” means actions undertaken by a permittee to compensate for impacts resulting from a specific project.

(4) “Protect and Manage Mitigation” is preservation mitigation that entails the removal of a threat to, or preventing the decline of vernal pool wetlands, and includes the establishment and maintenance of native biological communities.

(5) “Restore and Manage Mitigation” is mitigation which re-establishes and maintains vernal pool wetland topography and hydrology, and native biological communities in areas where previously existing vernal pools have been altered to upland or open water.

(6) “Steward” means the party responsible for long-term management and monitoring of the mitigation site after it has been released by the Department.

(7) “Vernal Pool” means a seasonal wetland found on shallow soils over an impermeable hardpan layer or bedrock.

(8) “Vernal Pool Complex (VPC) and VPC Habitat” means a tract of land that includes vernal pool wetlands and the upland mounds between them.

(9) “Vernal Pool Function Ranking” is the average of the four function scores (scores) for the subject site relative to the scores reported for the 59 vernal pool complexes inventoried in appendix C-1 of the Agate Desert Vernal Pool Final Draft Function Assessment Methodology dated April 2007 (AD Inventory). This report is available on the Department Web site.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 52-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2016, f. & cert. ef. 2-8-16
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0195 Jackson County Vernal Pools - Eligibility Requirements

(1) Project Location. To be eligible for this GP, the project must be located within the geographic area of Agate-Winlo soils. This area generally conforms to the boundaries of the Agate-Winlo soil map unit as mapped by the Natural Resources Conservation Service’s Jackson County soil survey.

(2) Type of Water. This GP authorizes removal-fill activities only in vernal pool wetlands and the following other waters that occur in Agate-Winlo soils:

(a) Ditches or other water conveyance structures constructed solely to drain vernal pool lands;

(b) Roadside ditches that are not part of a stream tributary system;

(d) Palustrine emergent wetlands that were historically vernal pool wetlands.

(3) Thresholds. To be eligible, a project must meet both of the following:

(a) Impacts to vernal pool wetlands and other waters must be less than two acres; and

(b) Impacts to VPC must be less than 15 acres.

(4) Mitigation. Mitigation must be accomplished in accordance with OAR 141-093-0200.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 56-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0200 Jackson County Vernal Pools - Mitigation

(1) General Requirements. Mitigation may be accomplished by either permittee responsible mitigation projects or by purchasing credits from an established mitigation bank. Mitigation must be conducted according to the following general requirements:

(a) Out-of-kind mitigation is not allowed for vernal pool impacts;

(b) All mitigation projects must meet the ratios and site suitability criteria described in this section.

(c) Mitigation for vernal pool impacts must consist of either protect and manage or restore and manage, or both. Neither enhancement of existing wetland nor creation of wetlands where they did not previously occur is recognized as suitable mitigation for this GP;

(d) Combination credits may be used only once (for wetlands or ESA species separately or for an impact that requires both types); and

(e) The amount of mitigation required to offset impacts to waters of the state depends on both the mitigation site base ratios and the impact site multipliers, as described in this section.

(2) Mitigation Site Base Ratios. Mitigation site base ratios are used to determine the number of credits generated by each type of mitigation, as follows:

(a) One and one-half acres of wetland protected and managed generates one wetland or combination credit (1.5:1 ratio), and

(b) One acre of wetland restored and managed generates one wetland or combination credit (1:1 ratio).

(3) Impact Site Multiplier. The impact site multiplier determines the number of credits that must be purchased from a bank or generated at a permittee responsible mitigation site to offset impacts associated with a project.

(a) The impact acreage is multiplied by 2 if the project meets both of the following:

(A) The vernal pool function ranking of the impact wetland is less than or equal to the 30th percentile score in the AD Inventory; and

(B) The total vernal pool wetland impact for the project is less than 0.5 acres.

(b) The impact acreage is multiplied by 2.5 if the project meets any one of the following:

(A) The vernal pool function ranking is less than or equal to the 30th percentile score in the AD Inventory and the total impact for the project is more than 0.5 acre of vernal pool wetland;

(B) The vernal pool function ranking is between the 30th and 70th percentile scores in the AD Inventory;

(C) The vernal pool wetland proposed for impact is within a USFWS designated critical habitat unit as shown on the Department Web site; or

(D) The vernal pool wetland proposed for impact is hydrologically contiguous with any VPC of 10-30 acres.

(A) The vernal pool function ranking is equal to or greater than the 70th percentile score in the AD Inventory; or

(B) The vernal pool wetland proposed for impact is hydrologically contiguous with any VPC >30 acres.

(d) For impacts to other waters, the impact acreage is multiplied by 2.

(4) Mitigation Site Suitability Criteria. All of the following criteria must be met for a proposed mitigation site under this GP:

(a) Size. The total effective size of a mitigation site must be at least 70 contiguous acres of VPC. The Department will consider adjacent, permanently protected parcels dedicated to vernal pool conservation as part of the total effective size if they have uninterrupted continuity of soils, water flows, and topography. The Department may determine that smaller parcels (10-70 acres) of VPC may be adequate in isolation if they exist within areas in which surrounding land uses are compatible with long-term VPC habitat conservation;

(b) Buffers. Mitigation sites must include sufficient area to maintain the hydrologic regime, soils, topography, and vegetation conditions to provide suitable habitat for the typical suite of vernal pools species. The mitigation site must include the surrounding upland mounds and adjacent areas adequate to buffer the VPC habitats against effects from adjacent land uses.

(c) Fairy Shrimp Presence. Mitigation sites must demonstrate at least 10 percent occupancy by vernal pool fairy shrimp, unless only restore and manage mitigation is proposed;

(d) Functionality. Mitigation sites must meet the 70th percentile ranking of the function assessment score, unless only restore and manage mitigation is proposed;

(e) Hardpan. All proposed mitigation sites and must have an intact hardpan layer and no activity anticipated that would perforate the hardpan (e.g. utility easement). If the hardpan is perforated within 100 feet of the mitigation site, or if it is anticipated in the future, the area of the mitigation site adversely affected, as determined by the Department, may generate half of the credits otherwise generated per OAR 141-093-0200(2); and

(f) Net gain. Mitigation projects proposed for lands that are already designated for conservation purposes must provide benefits to vernal pool habitats and species above and beyond those resulting from the current conservation status of the lands. For such cases, the number of credits generated will be determined by the Department.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 60-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0205 Jackson County Vernal Pools - Specific Application Requirements

(1) Wetland Delineation and Functional Assessments. All applications for this GP must include a wetland delineation approved by the Department and a functional assessment of the vernal pool wetlands at the impact site. If the project involves permittee responsible mitigation, a wetland delineation and functional assessment is also required for the mitigation site. Functional assessments must be conducted according to the Agate Desert Vernal Pool Final Draft Function Assessment Methodology, available on the Department’s Web site.

(2) Rare Species Surveys. All rare species surveys for this GP must be conducted according to the USFWS Guidance to Assist in the Assessment of, and Conservation Efforts for, Vernal Pool Systems on the Agate Desert, Jackson County, Oregon, dated June 2008, available on the Department Web site.

(3) Compensatory Wetland Mitigation Plan. All applications for this GP that do not propose using bank credits, must include a compensatory wetland mitigation plan according to OAR 141-085-0695 through 141-085-0705, unless otherwise specified in this GP.

(4) Long-Term Stewardship Plan. Each permittee responsible mitigation project under this GP must include a plan describing long-term management of the site necessary to meet the goal of sustaining the aquatic resources and the wetland-dependent listed species. The plan must include:

(a) A long-term protection instrument consistent with OAR 141-085-0695 for the entire mitigation site, including the uplands between vernal pools and buffers.

(b) Identification of the long-term steward;

(c) A description of the long term management goals, the actions needed to reach and maintain those goals, and an estimate of the annual costs for each action; and

(d) An ongoing funding mechanism, such as a non-wasting endowment, to pay for site management in perpetuity.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 61-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0215 Jackson County Vernal Pools - Specific Conditions

(1) General Conditions Apply. All the requirements, procedures and conditions set forth in OAR 141-093-0105 through 141-093-0135 apply to this GP, unless otherwise specified in this GP.

(3) Long-Term Protection of Mitigation Sites Required. The mitigation site shall be protected in perpetuity pursuant to OAR 141-085-0695, using an instrument approved by the Department. There must be no wetland impacts until the approved instrument is fully executed.

(4) Post-Construction Report Required. For restore and manage sites, a post-construction report demonstrating as-built conditions and discussing any variation from the approved plan must be provided to the Department within 90 days of mitigation site grading. The post-construction report must include:

(a) A scaled drawing, accurate to 6-inch elevation, showing the finished contours of the mitigation site;

(b) A narrative that describes any deviation from the approved mitigation plan; and

(5) Term of Monitoring; Annual Monitoring Reports Required. The permittee must monitor the mitigation site to determine whether the mitigation site is meeting performance standards for a minimum period of five growing seasons after completion of all initial plantings, and longer if necessary, until the standards have been met for three consecutive non-drought years. Annual monitoring reports are required; however, if a drought year occurs within these timelines, that year may be deferred and the regular monitoring must resume the next non-drought year.

(6) Annual Monitoring Report Due Date. Annual monitoring reports are due by December 31st of each year.

(7) Extension of the Monitoring Period. The monitoring period may be extended, at the discretion of the Department, for failure to provide monitoring reports, failure of the mitigation site to meet performance standards for three consecutive non-drought years or when needed to evaluate re-planting or other corrective or remedial actions.

(8) Release of Mitigation Obligation. Mitigation monitoring is required until the Department has officially released the site from further monitoring.

(9) Failure to Submit Monitoring Reports. Failure to submit the monitoring report by the due date may result in an extension of the monitoring period, forfeiture of the financial security and/or enforcement action.

(10) Contents of the Annual Monitoring Report. The annual monitoring report must include the following information:

(a) Completed Monitoring Report Cover Sheet, which includes permit number, permit holder name, monitoring date, report year, performance standards, and a determination of whether the site is meeting performance standards;

(b) Impact and mitigation site location map(s);

(c) A brief narrative that describes maintenance activities conducted and recommendations for future management to sustain performance standards;

(d) Mitigation site map showing permanent plot locations that correspond to the data collected and fixed photo-points;

(e) Data collected to support the conclusions related to the status of the site relative to all the performance standards listed in this permit (include a summary and analysis in the report and raw data in the appendix);

(f) Photos from fixed photo points (include in the appendix);

(g) Other information necessary to document compliance with the performance standards listed in this permit;

(h) A post-construction functional assessment by the end of the monitoring period; and

(i) For “Restore and Manage” projects, a delineation must be conducted one time within the first five years, during spring of a year with normal precipitation patterns.

(11) Corrective Action May Be Required. The Department retains the authority to require corrective action in the event the performance standards are not accomplished at any time within the monitoring period.

(12) Monitoring Methods. The mitigation site must be monitored according to the monitoring methods described in the Vernal Pool General Permit Mitigation Performance Standards and Monitoring Methods, available on the Department’s Web site.

(13) Performance Standards. Authorizations issued under this GP shall include the performance standards listed in the Vernal Pool General Permit Mitigation Performance Standards and Monitoring Methods, available on the Department’s Web site. Alternative performance standards may be approved, if they are based on monitoring data from appropriate reference sites and they meet the following goals:

(a) The goal of the hydrology and topography standards is to restore and sustain the natural range of extent, depth and duration of water, and topography of vernal pools.

(b) The goal of the vegetation standards is to restore and maintain plant communities dominated by native species typical of least-disturbed reference site vernal pool wetlands and surrounding uplands.

History

Statutory/Other Authority: ORS 196.600 – 196.692 & 196.795 – 196.990
Statutes/Other Implemented: ORS 196.600 – 196.692 & 196.795 – 196.990
DSL 62-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 1-2012, f. 3-14-12, cert. ef. 4-1-12

Or. Admin. R. 141-093-0220 Maintenance Drainage - Purpose

This General Permit (GP) authorizes removal of up to 100 cubic yards of material and fill of up to 100 cubic yards of material for the purpose of maintaining drainage to protect agricultural lands.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 76-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 63-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2012(Temp), f. & cert. ef. 4-2-12 thru 9-28-12

Or. Admin. R. 141-093-0225 Maintenance Drainage - Eligibility Requirements

Activities authorized by this GP must meet all of the following requirements for maintaining drainage to protect agricultural lands.

(1) Purpose. Removal and fill must be for the primary purpose of maintaining drainage to protect agricultural land.

(2) Land Use. The current land use must be agricultural land. For the purposes of this general permit, agricultural land means:

(a) Land currently used for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals, fish, or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof.

(b) Agricultural land also includes land used for the:

(A) On-site preparation, storage and disposal of the products or by-products raised on such land for human or animal use;

(B) Primary purpose of obtaining a monetary profitby stabling or training equines;

(C) On-site construction and maintenance of equipment and facilities used for the activities described in this subsection; or

(D) Growing trees exclusively as an agricultural, not forestry, commodity (e.g. cultured Christmas trees or hybrid cottonwood).

(3) Removal of Material. The excavation is limited to the minimum amount necessary to maintain drainage within existing bed and banks. Channel relocation is not allowed.

(4) Removal Threshold. The activity is limited to no more than a total of one hundred (100) cubic yards of material from below ordinary high water or below the elevation of highest measured tide, for each landowner, per calendar year.

(5) Disposal of Excavated Material. Material removed as a result of this activity may be placed in adjacent converted wetlands as long as the effects are temporary and do not result in a permanent conversion of wetland to upland.

(6) No Removal-Fill in SSW Allowed. Removal and fill under this general permit may not occur in waterways designated State Scenic Waterway (SSW) or waterways located in SSW Related Adjacent Lands.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 64-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2012(Temp), f. & cert. ef. 4-2-12 thru 9-28-12

Or. Admin. R. 141-093-0230 Maintenance Drainage - Specific Application Requirements

Notwithstanding OAR 141-093-0115, the applicant must provide the following information in an application:

(1) Description of the work to be done. Provide a description of how the work will be conducted and where the dredge spoil will be placed.

(2) Alternatives. Provide a statement about other methods that would protect agricultural lands and maintain drainage which would not require work in the waterway.

(3) Location of Project:

(a) A tax lot map that highlights the entire location and length of the removal and fill activity with respect to all tax lot lines;

(b) A scaled plan view drawing showing the approximate location of the existing channel and its dimensions; and

(c) The line indicating the location of the Ordinary High Water for non-tidal waters and Highest Measured Tide for tidal waters.

(4) Disposal Location. The application must include a map of the disposal location with respect to tax lot lines and waterways within the tax lot.

(5) Fees. No application or renewal fee required for this GP.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 65-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2012(Temp), f. & cert. ef. 4-2-12 thru 9-28-12

Or. Admin. R. 141-093-0235 Maintenance Drainage - Authorized Activities

Maintenance of Drainage. The annual removal of up to one hundred cubic yards of material below OHW or HMT for jurisdictional waterways for maintaining existing drainage to protect agricultural land and the placement of up to one hundred cubic yards of material in converted wetlands as a result of the project, when upland disposal is not practicable. Placement of material in converted wetlands must not result in creation of upland.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.816
DSL 66-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2012(Temp), f. & cert. ef. 4-2-12 thru 9-28-12

Or. Admin. R. 141-093-0240 Maintenance Drainage - Specific Conditions

(1) General Conditions Apply. All the conditions set forth in OAR 141-093-0135 apply to this GP.

(2) Temporary Impacts Only. No conversion of wetland to upland is allowed. All material placed in wetlands must be spread in a thin layer before the onset of winter rains.

(3) Removal of Woody Vegetation. Removal of woody vegetation must be limited to the minimum amount needed to complete the activity, including removal site access.

(4) Maintenance of Riparian Buffer. Where practicable and necessary to complete the activity, removal of woody vegetation is limited to the north or east sides of the stream channel.

(5) No Operation of Equipment in the Water Allowed. Equipment used to remove material must operate from top of bank position when feasible, otherwise from a dry position below top of bank.

(6) Design to Limit Maintenance. To the extent practicable, the project must be implemented to naturally maintain inlet and outlet connections with the main stream channel.

(7) Erosion Control. As necessary, erosion control measures must be installed and maintained during the activity and after disposal, so as to prevent discharge into waters of this state.

History

Statutory/Other Authority: ORS 196.600 - 196.692 & 196.795 - 196.990
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990
DSL 67-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
DSL 2-2012(Temp), f. & cert. ef. 4-2-12 thru 9-28-12

Or. Admin. R. 141-093-0245 Maintenance Drainage - Fees

This General Permit is exempt from the fee requirements set forth in OAR 141-085-0545.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.816
DSL 68-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12

Or. Admin. R. 141-093-0250 Maintenance Dredging - Purpose

This General Permit authorizes removal-fill for certain activities related to navigational access maintenance dredging.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 69-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0255 Maintenance Dredging - Definitions

The following definitions are used in this General Permit, in addition to those contained in OAR 141-085:

(1) “Baseline Authorization” means a previous removal-fill authorization for a dredge prism of specified area(s) and depth(s) that was executed within fifteen (15) years of the date of application for authorization under this General Permit.

(2) “Boat” is defined in ORS 830.005.

(3) “Flowlane” means that portion of a waterway where sufficient flow velocity and depth exists to disperse placed material and not cause shoaling.

(4) “Maintenance Dredging” means an activity undertaken by a person to remove and place, in approved in-water and upland locations, accumulated sediment within previously authorized and executed dredge areas and depths (“baseline authorization”) for the purpose of maintaining navigational access. If necessary and at the Department’s discretion, maintenance dredging may include up to one foot of additional over-dredge depth.

(5) “Navigational Access” means operation of a boat on waters of this State.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 70-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0260 Maintenance Dredging - Eligibility Requirements

Activities authorized by this General Permit must meet all of the following requirements:

(1) Purpose. The activity must be for the purpose of maintenance dredging.

(2) No Fill in Waters. The maintenance dredging activity includes no fill in waters of this State except for:

(a) Temporary placement of equipment necessary to conduct the maintenance dredging activity (e.g., spud piles, hydraulic pipelines, anchors).

(b) Any authorized placement of removed material in the flowlane or territorial sea.

(3) Removal Method. Removal of material must be by means of hydraulic pipeline dredge or closed bucket (e.g., clamshell bucket) unless otherwise approved by the Department and upon evidence that the removal activity will not result in significant suspension of material in the water column.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 71-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0265 Maintenance Dredging - Specific Application Requirements

In addition to the application requirements described in OAR 141-093-0105, the applicant must provide the following information in the application:

(1) Baseline Authorization; Identification of the baseline authorization(s) for the maintenance dredging activity being applied for under this General Permit.

(2) Drawings. Scaled drawing(s) illustrating the area and depths of the proposed maintenance dredging activity relative to the baseline authorization. Scaled drawings must report elevations in consistent and standard datum (e.g., NAVD 88, MLLW).

(3) Upland Placement. For upland placement, identification of the upland placement site and evidence of upland status (e.g., a valid written jurisdictional determination by the Department confirming upland status).

(4) In-water Placement. For placement in the flowlane or territorial sea, the applicant must provide a copy of findings from the Portland Sediment Evaluation Team, or any subsequently authorized body, approving in-water placement of the material.

(a) For flowlane placement, the applicant must also provide:

(A) Scaled drawing(s) clearly identifying the proposed placement area;

(B) Evaluation used by the applicant to evaluate the sufficiency of flow and depth to adequately disperse material and not cause shoaling;

(C) Evidence of coordination with OR Department of Fish and Wildlife regarding suitability of the benthic environment to receive the material; and

(D) For flowlane disposal within a federally authorized project area, evidence of coordination with the Corps' Navigation Branch to determine the potential for any impacts to navigation.

(b) For placement in the territorial sea, the applicant must also provide:

(A) Identification of the USEPA-approved placement site; and

(B) A resource inventory and effects evaluation consistent with the requirements contained in the Oregon Territorial Sea Plan, Part 2.

(5) Volumes. Volumes of material anticipated to be removed and to be placed in waters of this State per dredging event, number of dredging events anticipated over the term of the authorization, and total volumes over the term of the authorization.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 72-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0270 Maintenance Dredging - Authorized Activities

This General Permit authorizes maintenance dredging in accordance with the requirements of this Division, including the removal of material, transport of material to a placement site, and placement of material in an upland, flowlane or territorial sea location.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 73-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0275 Maintenance Dredging - Specific Conditions

(1) General Conditions Apply. All requirements, procedures and conditions set forth in OAR 141-093-0135 (General Conditions) apply to this General Permit, except as follows:

(a) General Condition (8) Pre-construction Resource Area Fencing or Flagging does not apply; and

(b) General Condition (9) Erosion Control Methods applies only to maintenance dredging activity involving upland placement of material.

(2) Removal-General.

(a) To the extent practicable, maintenance dredging activity must be staged from an upland or vessel-mounted position. If necessary to achieve the removal, heavy equipment may be staged on or traverse impervious surfaces in the dry below ordinary high water or highest measured tide. In such case, equipment must use water quality best management practices specified in the DEQ-issued Section 401 Water Quality Certification for the project.

(b) For vessel-mounted operations, vessels must not be grounded on the bed or banks at any time.

(c) Accumulated woody debris within the maintenance dredging footprint may be removed to the extent necessary to achieve the target bathymetry.

(3) Removal by Hydraulic Pipeline Dredge.

(a) To the extent practicable and as material characteristics allow, the working end of the dredge ladder must be kept buried at a target depth of at least 24 inches below the bottom of the waterway. The intake may be raised no more than 3 feet above the bed for the minimum time necessary for purging or flushing. No back-flushing of the pipeline is allowed. No jetting of sediment is allowed unless approved by the Department pursuant to OAR 141-093-0260(3).

(b)The pipeline and any anchors or floats must be removed from the waterway immediately upon completion of the maintenance dredging activity unless another minimum necessary timeframe is approved by the Department. In no case will the pipeline, anchors, floats or other equipment be permanently placed in waters of this State.

(c) Pressure in the dredge pipeline must be continuously monitored during operation. In the event of a sudden and sustained pressure drop, dredging activity shall immediately stop. Any breach of the pipeline must be repaired prior to restarting dredging operation.

(4) Removal by Closed Bucket. To the extent material characteristics allow, the bucket must be sealed in the closed position to minimize sediment re-suspension. Moving material on the bottom to consolidate it before lifting is prohibited.

(5) Material Transport. For dredged material transported by vessel or other over-water conveyance:

(a) All dredged materials must be placed in vessels or other conveyances equipped such that no dredged material discharges to waters of this State during loading, transfer and unloading activity for upland placement.

(b) Vessels must be staged such that there is no grounding on the bed or banks at any time.

(6) Placement – General. Unless otherwise authorized by the governing regulatory agency or agencies, removed material must not be placed in any wetland, Federal Emergency Management Administration designated floodway, or in an area historically subject to landslides.

(7) Upland Placement.

(a) Removed material placed in an upland site must meet the Oregon Department of Environmental Quality definition of clean fill or the use must be specifically allowed by the Oregon Department of Environmental Quality by rule, permit, or other authorization.

(b) Waste waters from the upland placement site must have adequate settling time before being discharged into a water of this State. Water discharged from the upland placement site must meet water quality requirements of the Oregon Department of Environmental Quality.

(8) Flowlane Placement. Flowlane placement must occur on the ebb tide only and only when there is sufficient current to disperse the material to prevent shoaling.

(9) Ocean Placement. Ocean placement may only occur as authorized by a USEPA letter of concurrence.

(10) Ocean Shore Permit. If the project includes direct placement of material on the ocean shore, a separate Ocean Shore Permit, administered by Oregon Parks and Recreation Department, will be required to authorize that activity.

(11) State-Owned Waterways. Maintenance dredging in a state-owned waterway may be subject to a Short-Term Access Agreement with the Department. The placement of state-owned material on uplands is subject to a Sand and Gravel Lease or License from the Department. Any beneficial use of state-owned material may be subject to royalty payments to the Department.

(12) Fish Entrainment. The authorization holder must immediately report any fish observed that are entrained by operations to the nearest OR Department of Fish and Wildlife office. The permittee must provide access for OR Department of Fish and Wildlife staff to enter the project site for making fish entrainment observations.

(13) Post-Activity Reporting. Within 90 days of maintenance dredging completion, the authorization holder must submit to the Department a scaled drawing illustrating the actual removal area and post-removal depths achieved using the same datum as used in the application.

(14) Modifying Conditions. The Department may modify the conditions of the authorization at any time if necessary to reduce or eliminate adverse effects to water resources.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 74-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0280 Maintenance Dredging - Term and Reporting

(1) Term. Authorizations under this General Permit may be kept active for up to twenty (20) years, subject to the following conditions. Failure to meet these conditions may result in suspension or revocation of the authorization.

(a) The applicable fees are received by the Department before the anniversary date of the authorization;

(b) The authorization holder submits to the Department, every five (5) years before the anniversary date of the authorization, a status report including at least the following information:

(A) Authorization holder name and permit number;

(B) Number of dredge events and total volume of material removed during the previous five-year period;

(D) Description of the physical conditions within the authorized dredge area at the time of report preparation: extent of submerged and submersible lands condition, extent of any vegetation including visible submerged aquatic vegetation.

History

Statutory/Other Authority: ORS 196.817
Statutes/Other Implemented: ORS 196.600-196.990
DSL 75-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 4-2016, f. 7-15-16, cert. ef. 9-1-16

Or. Admin. R. 141-093-0285 Certain Ocean Renewable Energy Facilities - GP-Purpose

This General Permit authorizes the placement and removal of certain ocean renewable energy facilities for research or demonstration projects in the territorial sea for a limited duration as defined by these Rules.

History

Statutory/Other Authority: ORS Chapter 183, ORS 196.810, ORS 196.817, ORS 196.485(3), ORS 197.180 & ORS 196.405-583
Statutes/Other Implemented: ORS 196.600-692 & ORS 196.795-990
DSL 59-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 5-2017, adopt filed 12/28/2017, effective 01/01/2018

Or. Admin. R. 141-093-0290 Certain Ocean Renewable Energy Facilities - GP-Definitions

The following definitions are used in this General Permit, in addition to those contained in OAR 141-085:

(1) “ Commercial Operation ”, as defined in ORS 274.870, means a project undertaken to generate ocean renewable energy for a purposes other than research, demonstration or personal use and that has financial profit as a goal.

(2) " Demonstration Project ", means a limited duration, non-commercial activity in the territorial sea to test the economic and/or technological viability of establishing a commercial operation. A demonstration project may be temporarily connected to the regional power grid for testing purposes without being a commercial operation.

(3) " Educational/Research Institution ", as defined in OAR 141-140-0020, means any accredited public or private university or college, or non-profit research organization.

(4) Joint Agency Review Team (JART) has the meaning described in OAR 141-140-0020.

(5) “ Ocean Renewable Energy ”, as defined in ORS 274.870, means electricity that is generated through:

(a) The conversion of energy contained in the natural properties of the ocean, including but not limited to energy contained in waves and swells, the tides and currents, ocean temperature and salinity gradients; and,

(b) Ocean offshore wind power.

(7) “ Ocean Renewable Energy Facility ”, as defined in ORS 274.870, means any energy conversion technology or device that is used as a necessary component of a research project, demonstration project or commercial operation to generate ocean renewable energy, including but not limited to all buoys, anchors, energy collectors, cables, control and transmission lines, and other equipment necessary or useful to the project or operation.

(5) " Research Project ", means a limited duration, non-commercial activity by an educational/research institution for the placement of ocean renewable energy facility in the territorial sea. The purpose of a research project is to test the technology used in, or functionality of an experimental ocean renewable energy device.

(9) " Territorial Sea " means the waters and seabed extending three geographical miles seaward from the coastline in conformance with federal law.

History

Statutory/Other Authority: ORS Chapter 183, ORS 196.810, ORS 196.817, ORS 274.870-879, ORS 196.485(3), ORS 197.180 & ORS 196.405-583
Statutes/Other Implemented: ORS 196.600-692, ORS 196.795-990 & ORS 274.870-879
DSL 58-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 5-2017, adopt filed 12/28/2017, effective 01/01/2018

Or. Admin. R. 141-093-0295 Certain Ocean Renewable Energy Facilities - GP-Eligibility Requirements

Activities authorized by this General Permit must meet all of the following requirements:

(1) Research project or demonstration project only.

(2) Project must have completed a JART pre-application meeting pursuant to OAR 141-140 and have a recommendation from the JART for processing under this General Permit.

(3) Projects must be wholly located within one of the following zones as designated in the Territorial Sea Plan, Part 5, Appendix B:

(a) Renewable Energy Facility Suitability Study Area (REFSSA);

(b) Renewable Energy Permit Areas (REPA); or,

(4) Notwithstanding the definition of “Ocean Renewable Energy” contained in ORS 274.870(3), the project cannot involve ocean offshore wind power generation.

(5) Removal and fill is limited to that part of the territorial sea between extreme low tide elevation and the three geographic mile limit only. No removal or fill in wetlands or other waters of this state is authorized by this General Permit.

History

Statutory/Other Authority: ORS Chapter 183, ORS 196.810, ORS 196.817, ORS 196.485(3), ORS 197.180 & ORS 196.405-583
Statutes/Other Implemented: ORS 196.795-990 & ORS 196.600-692
DSL 57-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 5-2017, adopt filed 12/28/2017, effective 01/01/2018

Or. Admin. R. 141-093-0300 Certain Ocean Renewable Energy Facilities - GP-Specific Application Requirements

In addition to application requirements pursuant to 141-093-0105, the applicant must provide the following information in an application:

(1) A JART recommendation for processing the proposed project under this General Permit.

(2) Map clearly illustrating location of the proposed ocean renewable energy facility placement relative to a REFSSA, REPA or RUMA.

(3) A completed Resource Inventory and Effects Evaluation pursuant to Part Five of the Territorial Sea Plan. For proposed projects within a RUMA, the Resource Inventory and Effects Evaluation must clearly demonstrate no significant adverse effects on inventoried marine resources and uses. Pursuant to the Territorial Sea Plan, Part Five D., a Resource Inventory and Effects Evaluation is not required for proposed projects located at the NW National Marine Renewable Energy Center- Mobile Ocean Test Berth.

(4) Description of how project meets the definition of “demonstration project” or “research project” as defined in this Rule.

(5) Project description including:

(a) Description and quantity of all project components including anchoring system and other fixed components, tethering and floating components.

(b) Area of ocean floor to be covered by anchors and any other equipment to be affixed to the ocean floor.

(d) Identification of any project components expected to be decommissioned in-place.

(e) Scaled plan view and cross-section drawings including the maximum ocean surface area that the facility will occupy considering drift area of floating components.

(f) Facility inspection and contingency plan describing nature and timing of inspections and contingency plans for events including but not limited to: sinking or disconnection of floating components, substantive movement of anchors from the point of placement, entanglement of fishing gear, any release of fluids or any exposure of any buried components.

(6) If project includes cables, pipes or conduit from device(s) to the ocean shore, application must describe method for placement consistent with Part Four of the Territorial Sea Plan. On-shore terminus of pipes, cables other conduit must be clearly identified. Any on-shore project components must be authorized by a state Ocean Shore Permit as administered by Oregon Parks and Recreation Department.

History

Statutory/Other Authority: ORS Chapter 183, ORS 196.810, ORS 196.817, ORS 196.485(3), ORS 197.180 & ORS 196.405-583
Statutes/Other Implemented: ORS 196.600-692 & ORS 196.795-990
DSL 55-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 5-2017, adopt filed 12/28/2017, effective 01/01/2018

Or. Admin. R. 141-093-0305 Certain Ocean Renewable Energy Facilities - GP-Authorized Activities

This General Permit authorizes the placement and removal of ocean renewable energy facilities in the territorial sea for the purpose of research or demonstration in an area not to exceed 53 contiguous acres per project, measured as the surface expression of a vertical column between the ocean surface and the ocean floor. Cables, pipes or conduit extending from the facility to the ocean shore are not included in the 53-acre limitation.

History

Statutory/Other Authority: ORS Chapter 183, ORS 196.810, ORS 196.817, ORS 196.485(3), ORS 197.180 & ORS 196.405-583
Statutes/Other Implemented: ORS 196.600-692 & ORS 196.795-990
DSL 54-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 5-2017, adopt filed 12/28/2017, effective 01/01/2018

Or. Admin. R. 141-093-0310 Certain Ocean Renewable Energy Facilities - GP- Specific Conditions

(1) All requirements, procedures and conditions set forth in OAR 141-093-135 (General Conditions) apply to this General Permit, except as follows:

(a) General Condition (5) ODFW Fish Passage Requirement;

(b) General Condition (8) Pre-Construction Resource Area Fencing or Flagging;

(d) General Condition (11) Raising or Redirecting Water

(2) Notwithstanding the provisions of ORS 274.879(8), the authorization holder must complete the removal of all equipment related to the ocean renewable energy facility within the term of the authorization, not to exceed five years, unless an individual removal-fill permit, pursuant to 141-085 has been issued for extended or expanded ocean renewable energy facility placement.

(3) Anchors, cables or any other equipment that lies at least one (1) meter beneath the ocean floor may be decommissioned in-place if:

(a) There is a recommendation from the JART to allow specified equipment to be decommissioned in-place; and,

(b) The authorization expressly allows specified equipment to be decommissioned in-place.

(3) Authorized facilities must contain fish screens as required by ODFW on any water intake or discharge devices associated with the ocean renewable energy facility.

(4) Any cables, pipes or other conduit extending to the ocean shore must be placed consistent with Part Four of the Territorial Sea Plan.

(5) Required notifications. The authorization holder must submit to the Department:

(a) For any approved decommissioning of equipment in-place, a letter verifying that the equipment is buried at least one (1) meter beneath the ocean floor. The letter must include a description of methods used to verify the burial depth of the equipment. This verification letter is due to the Department no later than 90 days prior to the initiation of facility decommissioning.

(b) A letter verifying the removal of all ocean renewable energy facility components (excluding any equipment authorized to be decommissioned in-place. This verification letter is due to the Department within 30 days of completing the removal.

(c) Notification of any observed sinking or disconnection of floating components, substantive movement of anchors from the point of placement, entanglement of fishing gear, any release of fluids or any exposure of any buried components. Notification is required within 24 hours of observance and must include a corrective action plan.

History

Statutory/Other Authority: ORS Chapter 183, ORS 196.810, ORS 196.817, ORS 196.485(3), ORS 197.180 & ORS 196.405-583
Statutes/Other Implemented: ORS 196.600-692 & ORS 196.795-990
DSL 53-2018, minor correction filed 01/05/2018, effective 01/05/2018
DSL 5-2017, adopt filed 12/28/2017, effective 01/01/2018

Division 95 STATE AGENCY COORDINATION PROGRAM

Or. Admin. R. 141-095-0005 Purpose

(1) This division adopts the Department of State Lands state agency coordination program entitled “A Program for Coordinating DSL’s Activities with Oregon’s Cities and Counties, Tribal Governments, Federal and State Agencies, and Special Districts” pursuant to ORS 197.180 and chapter 660, divisions 030 and 031.

(2) The four required elements of a state agency coordination program listed in ORS 197.180(3)(a)–(d) and OAR 660-030-0060(2)(a)–(d) are an agency’s:

(a) Rules and summaries of programs determined to affect land use (i.e., land use programs);

(b) Exempt and compatible land use programs and procedures for assuring that such programs will comply with the statewide planning goals and be compatible with acknowledged comprehensive plans and land use regulations;

(d) Program for cooperation with and technical assistance to local governments.

(3) Upon adoption by the State Land Board, this state agency coordination program replaces the department’s previous state agency coordination adopted by the State Land Board on October 23, 1990.

(4) This division becomes effective upon approval by the Department of Land Conservation and Development or upon certification by the Land Conservation and Development Commission.

(5) Copies of the department’s state agency coordination program are available at the following locations:

(a) Department of State Lands, 775 Summer Street, Suite 100, Salem, Oregon 97301-1279; DSL website: www.oregonstatelands.us; and

(b) Department of Land Conservation and Development, 635 Capitol Street NE, Suite 150, Salem, Oregon 97301-2540.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196, 197, 273 & 274
Statutes/Other Implemented: ORS 196, 197.180, 273 & 274
DSL 3-2006, f. & cert. ef. 7-13-06

Or. Admin. R. 141-095-0010 Definitions

For the purposes of this division, the definitions contained in ORS 197.015, 273.006 and 274.005 shall apply. In addition, the following definitions shall apply:

(1) “Acknowledgment” means that a local government comprehensive plan and land use regulations, land use regulation or plan or regulation amendment complies with the statewide planning goals.

(2) “Board” means the State Land Board consisting of the Governor of Oregon, State Treasurer and Secretary of State.

(3) “Certification” is an order issued by the Land Conservation and Development Commission finding that a state agency’s coordination program satisfies the requirements of ORS 197.180(3)(a)–(d) and OAR 660-030.

(4) “Commission” means the Land Conservation and Development Commission (LCDC). The staff of LCDC is the Department of Land Conservation and Development (DLCD).

(5) “Compatibility with Comprehensive Plans” as used in ORS 197.180 means that a state agency has taken actions pursuant to OAR 660-030-0070, including following procedures in its coordination program where certified, and there are no remaining land use conflicts between the adoption, amendment or implementation of the agency’s land use program and an acknowledged comprehensive plan.

(6) “Compliance with the Goals” means that a state agency’s land use programs and actions must comply with the applicable requirements of the statewide planning goals pursuant to OAR 660-030-0065.

(7) “Consistency with Comprehensive Plans” shall have the same meaning as the term “compatibility” as provided in section (5) of this rule and OAR 660-030-0070.

(8) “Coordination” as used in ORS 197.015(5) means the needs of all levels of government, semipublic and private agencies and the citizens of the State of Oregon have been considered and accommodated as much as possible.

(9) “Department” means the Department of State Lands (DSL).

(10) “Director” means the director of the Department of State Lands

(11) “Goals” or “Statewide Planning Goals” means the mandatory statewide planning standards adopted by the Land Conservation and Development Commission pursuant to ORS Chapters 195, 196 and 197.

(12) “Rules and Programs Affecting Land Use” or “State Agency Land Programs”:

(a) Are a state agency’s rules and programs which are:

(A) Specifically referenced in the statewide planning goals; or

(B) Reasonably expected to have significant effects on:

(i) Resources, objectives or areas identified in the statewide planning goals; or

(ii) Present or future land use identified in acknowledged comprehensive plans.

(b) Do not include state agency rules and programs, including any specific activities or functions which occur under the rules and programs listed in paragraph (12)(a)(A) of this rule, if:

(A) An applicable statute, constitutional provision or appellate court decision expressly exempts the requirement of compliance with the statewide goals and compatibility with acknowledged comprehensive plans; or

(B) The rule, program, or activity is not reasonably expected to have a significant effect on:

(i) Resources, objectives or areas identified in the statewide goals; or

(ii) Present or future land uses identified in acknowledged comprehensive plans; or

(C) A state agency transfers or acquires ownership or an interest in real property without making any changes in the use or area of the property. Action concurrent with or subsequent to a change of ownership that will affect land use or the area of the property is subject to either the statewide goals or applicable city or county land use regulations.

(c) A final determination of whether or not an agency program affects land use will be made by the Commission pursuant to ORS 197.180 and OAR chapter 660, division 030.

(13) “State Agency Coordination Program” or “SAC Program” is the program adopted by a state agency and submitted to the Department of Land Conservation and Development pursuant to ORS 197.180(3)(a)–(d) and OAR 660-030.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196, 197, 273 & 274
Statutes/Other Implemented: ORS 196, 197.180, 273 & 274
DSL 3-2006, f. & cert. ef. 7-13-06

Or. Admin. R. 141-095-0015 Applicability of State Agency Coordination Program to Department Rules and Programs

(1) This division and the applicable provisions of ORS 197.180 and OAR chapters 660, division 030 shall apply to all department land use programs referenced in the department’s state agency coordination program adopted pursuant to OAR 141-095-005(1) and to any future or subsequently amended department rule or program determined to affect land use in accordance with OAR 141-095-0010(12).

(2) Before taking any action to adopt, amend or implement a department land use program, the director shall confirm whether the proposed action will affect land use, and if so assure that all applicable provisions of the department’s state agency coordination program are followed. Of particular importance is for the director to assure that the proposed action affecting land use is compatible with the affected local government(s) acknowledged comprehensive plan(s) and land use regulations, and where necessary, complies with the statewide planning goals and applicable rules in OAR chapter 660.

(3) The director shall review and take other actions as needed to ensure that all department land use programs, including applicable administrative rules in OAR chapters 141 and 142, are consistent with and will be carried out in accordance with the department’s state agency coordination program and the provisions OAR 141-095.

(4) The director where necessary shall recommend revisions and other appropriate actions to the State Land Board to revise existing department land use programs and applicable administrative rules to comply with OAR 141-095-0015(3).

(5) The director as needed shall consult with and request assistance from the Department of Land Conservation and Development in carrying out OAR 141-095-0015(2)–(4) and any related sections of the department’s state agency coordination program.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 196, 197, 273 & 274
Statutes/Other Implemented: ORS 196, 197.180, 273 & 274
DSL 3-2006, f. & cert. ef. 7-13-06

Division 100 ADMINISTRATIVE RULES GOVERNING THE ISSUANCE AND ENFORCEMENT OF REMOVAL FILL PERMITS IN STATE SCENIC WATERWAYS

Or. Admin. R. 141-100-0005 Definitions

In addition to the definitions contained in ORS 390.805 through 390.835 and in OAR 141-085, the following definitions apply:

(1) "Beds" means the land within the wet perimeter and any adjacent non-vegetated dry gravel bar.

(2) "Emergency Circumstances" means immediate natural or human caused events the effects of which require prompt action to prevent irreparable harm, injury or damage to persons or property.

(3) "Irreparable" means without reasonable possibility of repair or restoration, or an extreme condition that cannot be corrected.

(4) "Prospecting" means to search or explore for samples of gold, silver or other precious minerals, using non-motorized methods, from among small quantities of aggregate.

(5) “Recreational Placer Mining in State Scenic Waterways” means to search or explore for samples of gold, silver or other precious minerals and remove, fill or move by artificial means, either through motorized or non-motorized methods, from or within the bed of a State Scenic Waterway by methods other than dredging. Note-Due to action by the 2001 Oregon Legislative Assembly (Oregon Laws 2001, Chapter 499, Section 4), the Department is no longer authorized to issue permits for dredging related to recreational placer mining in State Scenic Waterways.

(6) "Related Adjacent Land" means all land within 1/4 of one mile of the bank of Waldo Lake, or a river or segment of river within a State Scenic Waterway, except land that, in the Oregon Parks and Recreation Department's (OPRD) judgment, does not affect the view from the waters within a State Scenic Waterway.

(7) "State Scenic Waterway" means Waldo Lake, or a river or a segment of a river that has been designated under ORS 390.805 through 390.925 or any subsequent act, and includes related adjacent lands.

(8) "State Scenic Waterway Emergency Removal-Fill Permit" is an authorization issued by the Director for temporary, emergency-specific removal-fill activity in a State Scenic Waterway or jurisdictional waters within its related adjacent land.

(9) "State Scenic Waterway Individual Removal-fill Permit" is an authorization issued by the Department for any removal, filling or alteration of the bed and banks of a State Scenic Waterway and its related adjacent lands.

(10) "Special Attribute" means an aesthetic, scenic, environmental, scientific, recreational or similar feature identified by OPRD in a State Scenic Waterway Management Plan as the value that caused a particular waterway to be included in the Oregon Scenic Waterway Program. (ORS 390.845).

(11) "Waters of a State Scenic Waterway" are any waters within a designated State Scenic Waterway, including waters within its related adjacent lands that are subject to the jurisdiction of the Department.

(12) "Wet Perimeter" means the area of the stream that is under water, or is exposed as a non-vegetated dry gravel bar island surrounded on all sides by actively moving water at the time the activity occurs.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Renumbered from 141-100-0000, DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0010 Purpose

Pursuant to ORS 390.835(2) and (3), these rules establish procedures for the consideration and processing of permit applications for fill, removal and other alterations of the beds and banks of a State Scenic Waterway and in jurisdictional waters within related adjacent lands.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0020 Policy

The Department will:

(1) Preserve. Preserve the natural setting and free-flowing character of State Scenic Waterways and related adjacent lands for recreation, fish and wildlife uses for present and future benefit to the public.

(2) Recognize Best Use of Waters. Recognize recreation, fish and wildlife uses as the highest and best uses of the waters of a State Scenic Waterway.

(3) Protect. Protect the outstanding scenic, geological, botanical, historic, archaeological, outdoor recreation and fish and wildlife values along State Scenic Waterways by protecting the special attributes (as listed in each Scenic Waterway Management Plan prepared by OPRD) that caused the waterway to be included in the Scenic Waterway system.

(4) Require Non-structural Techniques. Require applicants to employ streambank stabilization and rehabilitation techniques utilizing native riparian vegetation and other non-structural alternatives, unless it can be demonstrated such approaches are unlikely to be effective for the given situation under consideration by the Department.

(5) Require Permits Prohibit filling, removal and alteration of the beds and banks of State Scenic Waterways, except as provided under OAR 141-100-0035, unless a permit is issued by the Director as provided in these rules.

(6) Cooperate with Local, State and Federal Agencies. Recognize the interrelated nature of regulatory activities affecting State Scenic Waterways and the need to achieve coordinated management and protection of State Scenic Waterway values. The Department shall work in close cooperation with state, local and federal agencies, particularly OPRD, Water Resources Department (WRD), Department of Environmental Quality (DEQ), Oregon Department of Fish and Wildlife (ODFW), U.S. Army Corps of Engineers (COE), affected tribes, and local government land use planning agencies.

(7) Provide for Public Comment. Recognize the high level of public interest in State Scenic Waterway management by providing opportunities for comment on proposed policies or rules and individual applications.

(8) Ensure Compatibility with Land Use. Adhere to the Department's State Agency Coordination Plan (OAR 141-095-0005 through 141-095-0015), to assure compliance with the statewide planning goals and compatibility with acknowledged city and county comprehensive land use plans.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0030 Coordination with Key Agencies Involved in Scenic Waterway Management

(1) Cooperative Effort. Managing the State Scenic Waterway Program is a cooperative effort of the OPRD, WRD and the Department. In addition, ODFW, DEQ, the Department of Forestry (DOF) and the Oregon State Marine Board play key roles. Therefore, the Department will:

(a) Coordinate the review and issuance of all State Scenic Waterway removal-fill permits with the affected state agencies;

(b) Coordinate the investigation of alleged State Scenic Waterway removal-fill violations with affected agencies;

(d) Seek to utilize the expertise of other state agency’s staff.

(2) Tribal and Federal Coordination. Because many State Scenic Waterways are also included in the federal Wild and Scenic River system or similar designations on tribal lands, the Department will work closely with the appropriate federal agencies including the U.S. Forest Service (USFS), U.S. Bureau of Land Management (BLM), the U.S Army Corps of Engineers (USACE) and affected tribes as follows:

(a) Fully coordinate the review and issuance of all State Scenic Waterway removal-fill permits with the analysis outlined in the Application Review Procedures for Scenic Waterway Removal-fill Permits (OAR 141-100-0045), and participate in National Environmental Protection Act review or any similar evaluations conducted by federal agencies; and

(b) Immediately notify the appropriate federal agency or affected tribe of alleged State Scenic Waterway removal-fill violations.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0035 Exemptions from Permit Requirements in State Scenic Waterways

(1) Prospecting. A permit will not be required for non-motorized methods of recreational prospecting resulting in filling, removing or moving by artificial means less than one cubic yard of material at any one individual site and, cumulatively, not more than five cubic yards of material from within the bed or wet perimeter of any single State Scenic Waterway in a single year. Recreational prospecting is prohibited from any site where fish eggs are present.

(2) Oregon Department of Fish and Wildlife (ODFW). ODFW may construct facilities or make improvements to facilitate the passage or propagation of fish and exercise other responsibilities in managing fish and wildlife resources.

(3) Oregon Water Resources Department (OWRD). OWRD may construct and maintain stream gauge stations and other facilities related to OWRD’s duties in the administration of the water laws.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-100-0040 Permit Types

Unless exempt under OAR 141-100-0035, one of the following types of permits is required prior to undertaking any amount of removal-fill activity within the bed and banks of a State Scenic Waterway and in waters of this state on related adjacent lands:

(1) State Scenic Waterway Individual Removal-fill Permit; or

(2) State Scenic Waterway Emergency Removal-fill Permit.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0045 State Scenic Waterway Individual Removal-Fill Permits

(1) Application Procedures. Applications for approval of all regulated removal-fill activities in State Scenic Waterways must be submitted to the Department in writing, in advance of the proposed activity, and must include all information needed to evaluate the request. The application must be submitted on the Joint Permit Application Form of the COE and the Department and must meet the standards for completed applications in OAR 141-085.

(2) Fees. Fees must be submitted for a complete application in accordance with the current fee schedule under OAR 141-085.

(3) Application Review Procedures:

(a) Applications must be reviewed within 30 calendar days from receipt and processed in a manner consistent with OAR 141-085, the Department rules for individual removal and fill permits;

(b) In reviewing an application, the Department will conduct the necessary investigations to develop a rational basis for a decision consistent with the requirements of the policies of this rule; and

(4) Public Review Process. All applications for impact to State Scenic Waterways must be available for public comment for 30 calendar days.

(a) The Department will provide application notice for comment to the Department of Fish and Wildlife, Department of Environmental Quality, Department of Land Conservation and Development, Department of Agriculture, Water Resources Department, Business Development Department, State Parks and Recreation Department, State Historic Preservation Office, Department of Geology and Mineral Industries, Department of Transportation, Department of Forestry, and any other affected state and federal agency and tribes. The Department will also provide application notice to adjacent property owners listed on the application and interested persons who request notice;

(b) In accordance with the procedures in the State Agency Coordination Program, the Department will provide application notice to the appropriate local government planning department(s) for a determination of the proposed activity's compatibility or non-compatibility with the affected city and county comprehensive plan(s) and land use regulations. If it is necessary to adopt findings of compliance with the statewide planning goals, the Department will act in accordance with its State Agency Coordination Program; and

(c) Recommendations and comments regarding the project must be submitted in writing to the Director within 30 calendar days from the date the application is provided for comment. The Department will give reasonable consideration to permit conditions or comments offered by any person.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Renumbered from 141-100-0050, DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0052 Agency Considerations and Determinations

(1) Issuance. The Department will issue State Scenic Waterway removal-fill permits only upon written findings that:

(a) The proposed activity is consistent with the State Scenic Waterway Act (ORS 390.805 through 390.925 or an applicable OPRD Scenic Waterway Management Plan or interim classification. The Department will coordinate with OPRD and WRD prior to making this determination;

(b) The proposed activity is consistent with ORS 196.800 through 196.990 administered according to OAR 141-085 related to removal of materials from the beds or banks and filling of any waters of this state;

(c) The proposed activity meets a demonstrated need and minimizes adverse impacts to special attributes of designated State Scenic Waterways; and

(d) The proposed activity, individually or collectively, would not degrade fish, wildlife or recreation values.

(2) Denial. The Director will deny any permit application, based upon written findings, if the proposed activity is not consistent with the policies under ORS 390.805 through 390.925 for State Scenic Waterways or 196.800 through 196.825 and 196.845 through 196.870 for removal of material from the bed and banks and filling any waters of this state.

(3) Findings. Written findings are required for all authorizations or denials of a permit application.

(4) Expiration. No State Scenic Individual Removal-Fill Permit will be issued for more than five years from issue date.

(5) Renewal. State Scenic Individual Removal-Fill Permits, not associated with recreational placer mining issued under OAR 141-100-0055, may be renewed for multi-year projects in the same manner as OAR 141-085.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11

Or. Admin. R. 141-100-0055 Recreational Placer Mining within State Scenic Waterways

(1) Limited Activities. No placer mining is permitted on waters within State Scenic Waterways other than recreational placer mining.

(2) Threshold. A complete application in accordance with OAR 141-085-0550 and authorization under OAR 141-100-0045 will be required for non-dredge recreational placer mining involving filling, removing or moving by artificial means any amount of material from within the bed or wet perimeter of any single scenic waterway or waters within jurisdictional waters within related adjacent lands.

(3) Eligibility Criteria. To be eligible for a Scenic Waterway Individual Removal-Fill permit for recreational, non-dredge placer mining, the operation must conform to the following:

(a) The activity must be for recreational placer mining as defined in OAR 141-100-0005(5);

(b) The activity must not dam or divert a waterway or obstruct fish passage;

(d) The activity must not involve disturbance of rooted or embedded woody plants including trees and shrubs, regardless of their location (for example, on gravel bars);

(e) The activity must not include excavation from the streambank between the edge of the wet perimeter and the Ordinary High Water Line;

(f) The activity must not include movement of boulders, logs, stumps or other woody material from the wet perimeter other than movement by hand and non-motorized equipment;

(g) Upon completion of the mining activity all piles, pits, furrows or potholes outside the main channel of the waterway created by the activity must be leveled by hand;

(h) The recreational placer miner must obtain landowner permission before operating;

(i) The activity must occur only during the recommended in-water work period identified in the Oregon Department of Fish and Wildlife's "Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources" and is prohibited during periods when fish eggs could be in the activity site;

(j) The activity must comply with other applicable local, state, and federal laws and regulations, including the federal Endangered Species Act; and

(k) The activity must not impede recreational boating.

(4) Annual Report Required. The authorization holder must report, on a form provided by the Department, the amount of material removed, placed or altered in each State Scenic Waterway in during the year of authorization. The Department must receive this report before December 31 of each year that the individual permit is valid.

(5) Expiration. The State Scenic Waterway Individual Removal-Fill Permit for recreational placer mining is valid for up to one year.

(6) Renewal. The State Scenic Waterway Individual Removal-Fill permit for recreational placer mining may be conditionally renewed for up to five years when annual reports are submitted for the previous year according to OAR 141-100-0055(4).

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98

Or. Admin. R. 141-100-0060 Scenic Waterway Emergency Removal/Fill Permits

(1) Application Procedures. Applications for a State Scenic Waterway Emergency Removal-Fill Permit may be made verbally (e.g., by phone), or by written application, including facsimile, by the following procedures:

(a) Applicants must provide the Department the following information:

(A) Location of emergency;

(B) A description of the emergency;

(D) The potential consequences of taking no action.

(b) Within five calendar days of receiving a verbal confirmation of an emergency permit for removal-fill activities, the applicant must submit to the Department a written emergency permit application and applicable fees, in accord with the procedures herein.

(2) Review Standards. The Director may issue State Scenic Waterway Emergency Removal-Fill Permits only after determination that:

(a) Natural or human-caused situation exist which cause the emergency circumstance, such as, but not limited to, flooding, landslides, wildfire, and hazardous substance spills; and

(b) It is necessary to make repairs or take action to prevent irreparable harm, injury, or damage to persons or property.

(3) Review Procedures. The Director may conduct the review of State Scenic Waterway Emergency Removal-Fill Permit applications by:

(a) Consulting with ODFW and OPRD before issuing a temporary Emergency Removal-Fill Permit as provided by ORS 390.835(3)(a) and DEQ and WRD ,if applicable. Consultation may be achieved by Memorandum of Agreement with the applicable agencies or on a case-by-case permit review;

(b) Completing an investigation sufficient to develop a rational basis for a decision consistent with the requirements of the Issuance Standards;

(c) Consulting with any applicable tribes or federal land managers and regulators, as allowed by circumstances and time constraints, and by reasonable consideration to those agencies’ recommendations for temporary permit conditions; and

(d) Assuring compatibility of the project, to the extent practical, with the affected local government(s) comprehensive plan and land use regulations.

(4) Permit Decisions:

(a) The Director may issue a State Scenic Emergency Removal-Fill Permit, only if all the review standards for emergency waterway permits are met. Emergency permit issuance by the Director may be made by written confirmation to the applicant, verbally (to be followed by written confirmation), or through procedures established in Memoranda of Agreement with other agencies (e.g., through the Oregon Emergency Response System);

(b) The Department staff may visit the site of the emergency permitted activity as soon as practicable following permit issuance; and

(c) Following the issuance of an emergency permit, the Department may review the emergency permit and determine if any further action is necessary to modify the permit conditions after the emergency has passed.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0070 Appeals

(1) Applicants. Any applicant whose application to the Department for a permit has been denied, or who objects to any of the permit conditions imposed by the Director, may, within 21 calendar days of the denial of the permit or the imposition of any condition, request a hearing from the Director. The hearing will be conducted as a contested case hearing in accordance with ORS 196.825(6).

(2) Aggrieved or Adversely Affected Persons. Any person, excluding permit applicants, aggrieved or adversely affected by issuance or denial of a permit by the Director may file a written request for hearing within 21 calendar days after the date the permit was granted in the manner provided by ORS 196.835.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0080 Enforcement

The Director is authorized to take civil, criminal and administrative action to enforce the requirements of this Division using the authorities provided by the Removal-Fill Law according to ORS 196.860 through 196.990 and OAR 141-085.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Or. Admin. R. 141-100-0090 Appeals of Enforcement Orders

Any person aggrieved by a proposed enforcement order of the Director for a removal-fill violation in a State Scenic Waterway may request a contested case hearing within 20 calendar days of the date of personal service or mailing of the notice of order. However, requesting a contested case hearing on a Cease and Desist Order must be made within 10 calendar days of the date of personal service or mailing of the notice of order. Hearing procedures are the same as for other Removal-Fill Law violations as provided in OAR 141-085.

History

Statutory/Other Authority: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
Statutes/Other Implemented: ORS 196.600 - 196.692, 196.795 - 196.990 & 390.805 - 390.925
DSL 4-2011, f. & cert. ef. 3-1-11
DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09
DSL 3-1998, f. & cert. ef. 4-22-98
LB 3-1994, f. 5-11-94, cert. ef. 5-15-94

Division 102 OREGON ESSENTIAL INDIGENOUS ANADROMOUS SALMONID HABITAT

Or. Admin. R. 141-102-0000 Purpose

Pursuant to ORS 196.810(1)(b), these rules:

(1) Further define "essential indigenous anadromous salmonid habitat (ESH)";

(2) Designate ESH in consultation with the Oregon Department of Fish and Wildlife (ODFW) and in consultation with other affected parties;

(3) Establish the process to amend ESH designations as new information becomes available;

(4) Develop and implement a process for responding to requests to review the accuracy of an ESH designation and mapping; and

(5) Require an authorization from the Department for activities involving the fill or removal of any amount of material in ESH unless the activity is exempt.

History

Statutory/Other Authority: ORS 196.810
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 1-2021, amend filed 04/28/2021, effective 05/14/2021
DSL 1-2010, f. 3-15-10, cert. ef. 4-1-10
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 4-2001, f. & cert. ef. 4-18-01
DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99
LB 4-1995, f. 12-13-95, cert. ef. 1-1-96

Or. Admin. R. 141-102-0010 Policy

(1) It is the policy of the State of Oregon to protect ESH.

(2) To achieve this policy, the Department shall:

(a) Consult with ODFW concerning the status of Oregon's indigenous anadromous salmonid species.

(b) Identify ESH in consultation with ODFW and other affected parties.

(c) Provide for public comment. Recognize the high level of public interest in ESH by providing opportunities for public review and comment when there are proposed changes to ESH designations.

(d) Provide opportunities for Tribal consultation and engagement to all federally recognized Tribes in Oregon, recognizing the varied interests and unique connections Tribes have with salmonids and their habitat.

(e) Promote awareness of ESH. Raising awareness is the best way to protect ESH. Coordinate with other natural resource agencies to promote awareness of ESH and ESH updates.

(f) Review all projects proposed in ESH pursuant to the standards set forth in the state's Removal-Fill Law (ORS 196.600 to 196.990) and rules (OAR 141-085).

History

Statutory/Other Authority: ORS 196.810
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 1-2021, amend filed 04/28/2021, effective 05/14/2021
DSL 1-2010, f. 3-15-10, cert. ef. 4-1-10
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 4-2001, f. & cert. ef. 4-18-01
DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99
LB 4-1995, f. 12-13-95, cert. ef. 1-1-96

Or. Admin. R. 141-102-0020 Definitions

(1) "Essential" means those portions of a stream reach that fill all or part of the basic or indispensable spawning or rearing needs of indigenous anadromous salmonids and are those areas necessary to prevent the depletion of indigenous anadromous salmonids. Such areas include "spawning habitat” and “rearing habitat" as defined below under sections (3) and (4) of this rule.

(2) "Indigenous anadromous salmonid" means chum, sockeye, Chinook and Coho Salmon, and steelhead and cutthroat trout, that are members of the family of Salmonidae and are listed as sensitive, threatened or endangered by a state or federal authority.

(3) "Spawning Habitat” includes areas where eggs are deposited and fertilized. For some species, including salmonids, this also includes areas where gravel emergence occurs and where at least some juvenile development occurs.

(4) "Rearing Habitat" includes areas outside primary spawning habitats where juvenile fish take up residence during some stage of juvenile development and use the area for feeding, shelter, and growth. Some migration also occurs as juvenile and adult fish move between the ocean and spawning grounds.

(5) “Tribal Consultation” means direct, meaningful government to government communication between the Department and members of the federally recognized Tribes in Oregon, with the purpose of receiving input.

History

Statutory/Other Authority: ORS 196.810
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 1-2021, amend filed 04/28/2021, effective 05/14/2021
DSL 1-2015, f. 2-10-15, cert. ef. 3-1-15
DSL 1-2010, f. 3-15-10, cert. ef. 4-1-10
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 4-2001, f. & cert. ef. 4-18-01
DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99
LB 4-1995, f. 12-13-95, cert. ef. 1-1-96

Or. Admin. R. 141-102-0030 Designation of Essential Salmon Habitat (ESH)

(1) Areas eligible for designation as ESH include the waters of this state as described in OAR 141-085, including streams and any adjacent off-channel rearing or high-flow refugia habitat with a permanent or seasonal surface water connection to the stream.

(2) The streams and stream segments designated as ESH are shown in the 2021 Essential Salmonid Habitat Map. The Department may modify ESH designations based on the best available information following the process in OAR 141-102-0040.

(3) The Department will make detailed maps of designated ESH available on the Department’s website; physical maps will be made available upon request, at cost.

(4) The Department will notify and provide the opportunity for Tribal consultation to federally recognized Tribes in Oregon and conduct outreach with the affected public to promote awareness of ESH and ESH updates.

History

Statutory/Other Authority: ORS 196.810
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 1-2021, amend filed 04/28/2021, effective 05/14/2021
DSL 1-2015, f. 2-10-15, cert. ef. 3-1-15
DSL 1-2010, f. 3-15-10, cert. ef. 4-1-10
DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 4-2001, f. & cert. ef. 4-18-01
DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99
LB 4-1995, f. 12-13-95, cert. ef. 1-1-96

Or. Admin. R. 141-102-0040 Revisions to ESH

Revisions to ESH designations shall be made in accordance with the current ODFW Stewardship Plan for the Oregon Fish Habitat Distribution Database and the following procedure:

(1) Requests to change an ESH designation and mapping may be submitted to the Department at any time. The Department will submit requests to ODFW for consideration.

(2) Additions, modifications, and deletions to ESH accepted by ODFW may be adopted by the Department during the next annual update process, subject to input from interested parties received in accordance with section (5), and based on the best available information.

(3) Corrections in data entry and map alignment accepted by ODFW may be adopted by the Department outside of the annual update process. Adopted changes are considered effective but may not be reflected on ESH maps until the next annual map update.

(4) The Department will consult annually with ODFW on the accuracy of the ESH designations since the last update.

(a) If advised by ODFW that new or higher quality data is not available, ESH designations will not change for that year.

(b) When advised by ODFW that new or higher quality data is available, the Department shall adopt the revised ESH designations, subject to input from interested parties received in accordance with section (5), and based on the best available information.

(5) The Department will provide opportunity for input from interested parties on proposed annual changes to ESH designations as provided in accordance with section (2) of this rule before adopting a revised map.

(a) The Department will notify federally recognized Tribes within Oregon about revisions to ESH, and provide an opportunity for Tribal consultation at least 60 days before annual changes are adopted.

(b) Revisions to ESH must be available for public review and comment for a minimum of 30 calendar days. The Department may extend the comment period at its discretion.

(c) Recommendations and comments regarding revisions to ESH designations must be submitted in writing to the Department, either electronically or by mail.

(6) If annual changes occur, final designations and an updated map will be adopted no later than February 1 of each year.

History

Statutory/Other Authority: ORS 196.810
Statutes/Other Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
DSL 1-2021, amend filed 04/28/2021, effective 05/14/2021
DSL 1-2010, f. 3-15-10, cert. ef. 4-1-10
DSL 1-2004, f. & cert. ef. 5-21-04
DSL 4-2001, f. & cert. ef. 4-18-01
DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99
LB 4-1995, f. 12-13-95, cert. ef. 1-1-96

Division 110 MANAGEMENT AND LEASING OF RANGELAND FORAGE

Or. Admin. R. 141-110-0000 Applicability

(1) These rules:

(a) Apply to the management of state land for the grazing of livestock; and

(b) Establish a process for authorizing grazing of livestock through the granting of leases and trailing permits.

(2) These rules do not apply to:

(a) The granting of proprietary authorizations for other, non-grazing-related rangeland such as wind farms, quarries, power lines, or roads that are specifically governed by other Department administrative rules; or

(b) Existing valid leases granted prior to the adoption of these rules.

History

Statutory/Other Authority: ORS 274.045, 273.051 & 273.805 - 273.825
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0005 Definitions

(1) "Animal Gain" is the number of pounds gained by an animal over a specific period while grazing.

(2) "Animal Unit" or “AU” is one mature cow of approximately 1,000 pounds and a calf up to weaning, usually 6 months of age, or their equivalent as determined by the Department. For example: one yearling is 0.7 of an animal unit; one bull is 1.35 of an animal unit; one dry cow is 0.92 of an animal unit; one horse is 1.25 of an animal unit, or one sheep is 0.20 of an animal unit.

(3) "Animal Unit Month" or "AUM" is the amount of forage (approximately 800 pounds of air-dried material) necessary to feed one animal unit for one month.

(4) “Annual Operating Plan” or “AOP” is a plan developed every year by the Department following consultation by Department staff with a lessee to guide the grazing of livestock on a particular leasehold for a grazing year to meet the objectives outlined in an approved Leasehold Management Plan (“LMP”).

(5) "Applicant" is any person applying for a livestock forage grazing lease or a livestock trailing permit who meets the following qualifications:

(a) Be a "person" as defined in these rules and if an individual, be at least 18 years old; and

(b) Be able to demonstrate the ability to fully meet all terms and conditions of the lease, including all provisions of an approved LMP applicable to the lease.

(6) “Asset Management Plan” or “AMP” is the plan adopted by the State Land Board that provides the policy direction and management principles to guide both the short- and long-term management by the Department of State Lands of the Common School Fund’s real estate assets.

(7) “Carrying Capacity” is the number of AUMs the Department determines can be obtained from a specific pasture or leasehold for a specific period of time without compromising the long-term sustainability of the forage resource or watershed, or adversely affecting ecosystem health or grazing animal response.

(8) “Compensation” or “Compensatory Payment” is the amount of money paid for a lease or permit to the Department for the use of Department-managed land for grazing.

(9) “Common School Grazing Lands” as defined in ORS 273.805, are Trust Lands and Non-Trust Lands owned by the State of Oregon under the control of the Department of State Lands that are chiefly suitable for the grazing of animals, as determined by the Department, and which are within, but not limited to, the following land classifications:

(a) Lands defined by ORS 273.251 as indemnity lands, school lands, or farmlands; and

(b) Lands that have escheated to the state.

(10) "Department" means the Oregon Department of State Lands.

(11) “Director" means the Director of the Oregon Department of State Lands or designee.

(12) “Ecosystem Health” is the degree to which the integrity of the soil, vegetation, water and air, as well as the ecological processes of rangeland ecosystems, are balanced and sustained.

(13) "Grazing Schedule" is a planned sequence of grazing or resting designed for a particular leasehold.

(14) “Hazardous or Waste Material” means items that may pose a danger to the public, wildlife or its habitat, or which do not enhance the usefulness or value of a leasehold including, but not limited to, waste or scrap items used in construction, hazardous substances (as defined in 42 USC 9601(14), chemicals and insecticides, garbage or other debris, and non-working motor vehicles and other mechanical equipment.

(15) "Improvement" is any structural project or non-structural activity undertaken by either the Department or a lessee that typically benefits the use or condition of a leasehold. An improvement may either be structural in nature (for example, the placement or construction of fencing, buildings, ponds, pipelines, watering troughs, power lines, etc.), or consist of nonstructural activities or treatments to improve the land (for example, seeding or brush control).

(16) "Lease" for the purposes of these rules, is a valid enforceable contract executed by the Department and signed by the lease applicant (called lessee) allowing the use of a specific area of state land for livestock grazing under terms and conditions specified in the lease contract and these rules.

(17) "Leasehold" is a particular area of rangeland subject to a lease.

(18) “Leasehold Management Plan” or “LMP” is a multi-year plan to guide the livestock grazing activities on a specific leasehold in relationship to other uses and resources, such as recreation uses, cultural resources, watershed resources, vegetation resources, and fish and wildlife habitat.

(19) "Lessee" refers to any person having a valid rangeland forage lease issued by the Department.

(20) "Livestock" are domestic animals used for the production of goods and services.

(21) “Livestock Trailing” means the moving of livestock across state-owned land that is not leased to the person owning or moving the livestock.

(22) "Marketable Calf Crop" means the estimated number of marketable beef calves available for sale over a one-year period expressed as a percent of stock cow herd.

(23) "Non-Trust Land" is state land managed by the Department other than Trust Land. Examples of Non-Trust Land include state-owned Swamp Land Act Land, and submerged and submersible land (land below ordinary high water) under navigable waterways.

(24) "Pasture" is a specific area of rangeland, usually enclosed and separated from other areas by a fence, or isolated by some physical feature. A leasehold may contain numerous pastures.

(25) "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, or Indian Tribe.

(26) “Specific Area Management Plan” or “SAMP” means a plan to carry out the goals and strategies of the Asset Management Plan for land tracts or parcels usually related by geography or use.

(27) "State Land" is land owned and managed by the Department and includes Trust Land and Non-Trust Land.

(28) "State Share" is the percent of net livestock weight gain designated to the Department for the use of rangeland forage.

(29) "Sublease" is an agreement between the lessee and another party for the use of the lessee’s leasehold for the same purposes of the lease.

(30) “Trailing Permit” is an authorization granted by the Department to a person allowing them to move livestock across state-owned land for which they do not have a lease.

(31) “Trust Land" is state land granted to the state upon its admission into the Union, or obtained by the state as a result of an exchange of Trust Land, or obtained in lieu of originally granted Trust Land, or purchased with trust funds, or obtained through foreclosure of loans using trust funds. Common School Grazing Lands are Trust Lands.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
Renumbered from 141-110-0020, DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0010 Policies

The following policies will guide the Department in managing state land for grazing including those lands referred to as Common School Grazing Lands for livestock use under these rules:

(1) All Trust Land will be managed in accordance with the need to maximize long-term financial benefit to the Common School Fund.

(2) All Trust and Non-Trust Land will be managed with the objective of obtaining the greatest benefit for the people of this state consistent with the conservation of this resource under sound techniques of land management.

(3) The Department will honor the terms and conditions of any existing valid forage lease including any that entitle the lessee to compensation or renewal.

(4) The Department will manage state lands used for livestock grazing to prevent human-induced loss of ecosystem health. Toward this end, the Department will assist in implementing leasehold improvements and practices that maintain, achieve or restore healthy, properly functioning ecosystems and maintain, restore, or enhance water quality.

(5) The Department will, to the best of its ability, monitor and assess ecosystem health. The Department may use assessments and routine monitoring as the basis for management decisions.

(6) The Department may authorize other, non-forage-related uses for a leasehold, even if the leasehold is already subject to a forage lease, pursuant to these regulations and the terms and provisions of the forage lease.

(7) The Department will manage all lands leased for livestock grazing or permitted for livestock trailing in accordance with the applicable land classification as guided by the AMP and any applicable SAMP or LMP.

(8) The Department may, at its discretion, deny a lease application or lease renewal to use state-owned land if the applicant’s financial status or past business or management practices indicate 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 is consistent with the policies of OAR 141-110-0010, listed above.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0035 Application Requirements

(1) All persons applying to lease rangeland forage, or renew an expiring lease having a renewal provision must:

(a) Apply to the Department using a form provided by the Department. One application form shall be submitted for each leasehold for which a lease is requested;

(b) Submit a non-refundable application fee for each application as provided in OAR 141-110-0045

(d) Provide documentation of brand certification.

(2) The Department reserves the right to deny an application if the Department determines that issuance or renewal of a lease is contrary to local, state, or federal law, or to these rules; or is inconsistent with the fiduciary responsibilities of the Department; or will not result in the greatest public benefit consistent with the conservation of the resource under sound techniques of land management; or if the land is reclassified to a land classification other than rangeland.

History

Statutory/Other Authority: ORS 273.045 & ORS 273.051
Statutes/Other Implemented: ORS 273.805, ORS 273.815 & ORS 273.825
Renumbered from 141-110-0050, DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0040 Leasing Process for Vacant Rangelands

(1) Upon receipt of a fully completed application, the Department will determine in a timely manner if the applicant is eligible to lease, and if the requested state land is available for a forage lease.

(2) If the Department determines that:

(a) The applicant is ineligible to enter into a forage lease, the Department will notify the applicant in writing and state the reason for the ineligibility determination.

(b) The requested state land is not available for a forage lease, the Department will notify the applicant in writing and state the reason the state land is not available.

(3) If the applicant is eligible and the requested state land is available for a lease, the Department will issue a Notice of Leasehold Availability to solicit applications from interested persons. This notice will be published not less than once each week for two successive weeks in a newspaper of general circulation in the area in which the leasehold is located, and sent to adjacent property owners and to persons who request such notices including the original applicant.

(4) The Department will review and evaluate the applications received in response to the Notice of Leasehold Availability. This evaluation will determine which applicants, if any, are qualified to obtain a forage lease.

(5) If more than one application for a lease is received from qualified applicants, selection of the applicant to be awarded the lease will be determined by:

(a) Ownership or control of adjacent or intermingled land which will best enhance, or facilitate proper management of the leasehold parcel;

(b) Willingness of the applicant to execute the terms of the applicable LMP or SAMP or enter into cooperative agreements for needed maintenance and desired construction of new improvements to enhance overall management of the leasehold parcel; and

(c) Any additional factors the Department decides are pertinent in the selection process to a particular forage leasehold parcel including, but not limited to, any bonus bid offered by an applicant.

(6) Preference to obtain a new lease will be given to applicants who are current lessees in good standing with their existing lease and landowners engaged in the livestock business that seek to use state land for the grazing of livestock. For the purposes of this section, “landowner” means an individual or legal entity that is the owner of the land, or water rights necessary to permit the proper use of the leased Common School Grazing Lands in combination with the landowner’s privately-owned or controlled land or water.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0045 Application Fees

(1) Each application for a forage lease (including renewals) must be accompanied by a non-refundable fee payable to the Department in the amount of $250.

(2) An application for the Department’s approval of a sublease or assignment of a forage lease must be accompanied by a non-refundable application fee of $250 payable to the Department.

(3) An application for a livestock-trailing permit must be accompanied by a non-refundable application fee of $50.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09

Or. Admin. R. 141-110-0060 General Lease Terms and Conditions

(1) A forage lease grants a lessee the right to use a leasehold for livestock grazing purposes in accordance with the lease terms and conditions; applicable local, state and federal laws; an approved LMP or SAMP, if applicable; and these rules.

(2) The Department or its authorized representative(s) may enter upon any leasehold at any reasonable time to make any necessary examinations or investigations, or to conduct noxious weed or pest abatement, or for wildfire control.

(3) Each forage lessee must maintain and make available to the Department upon request all records and accounts related to the leasehold. These records shall accurately reflect the period of time each leasehold was used.

(4) A forage lessee shall obtain prior written authorization from the Department before using, placing, or storing, or allowing another person to use, place or store any hazardous, waste or other material on the leasehold. Additionally, a forage lessee, when authorized by the Department to use a pesticide, chemical or insecticide must only do so in strict compliance with all laws and manufacturer's instructions and shall take all necessary precautions to protect the leasehold and its soil and vegetation. The lessee shall keep and maintain accurate and complete records of the amount of such materials stored or used on the leasehold and shall immediately notify the Department of any potential risk to the leasehold.

(5) The lessee must cooperate and comply with:

(a) Appropriate county agencies and the Oregon Department of Agriculture in the detection, prevention and control of noxious weeds;

(b) The Oregon Department of Agriculture and the Department in the management of plant pests and diseases; and

(6) State lands leased for grazing purposes must be open and available to the public for recreational uses unless closed by the state to public entry pursuant to applicable Oregon Administrative Rules. A lessee may request that the state close all or portions of the state land to public entry or restrict their recreational uses by the public in order to protect crops, other land cover, improvements on the land, livestock, the lessee or the general public. Public use must be compatible with the lease purpose and shall not interfere with lessee operations.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 8-1996, f. & cert. ef. 12-13-96
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0080 Compensation

(1) The annual compensation for livestock forage is the greatest of:

(a) $250;

(b) $4.25 per AUM; or

(c) The carrying capacity of the leasehold in AUMs multiplied by the annual AUM rate (expressed in dollars per AUM). The Department will establish the carrying capacity for each leasehold, which will be periodically reviewed. For those leaseholds that have highly variable annual forage production, their carrying capacity may be determined based on reliable actual grazing use records for a given year. As a result, the annual rental rate may vary from year to year for such leaseholds.

(2) Each year the Department will calculate the annual AUM compensation rate using the following formula:

AUM Compensation Rate = G x CC x S x P

G = Animal gain per month

CC = Marketable calf crop

S = State share

P = Average weighted calf price

(3) For the purpose of determining the base AUM compensation rate, the following formula factors shall be used:

(a) Pounds of gain per animal unit month (G) shall be fixed at 30 pounds through 2009, increasing on January 1, 2010 to 35 pounds.

(b) Marketable calf crop (CC) shall be fixed at 80 percent.

(c) State share of calf gain (S) shall be fixed at 20 percent through 2010, increasing on January 1, 2011 to 22.5 percent, then increasing on January 1, 2012 to 25 percent.

(d) Average weighted calf price (P) shall be based on 90% of the USDA National price data indicating the average sales price of calves for the preceding one year period based on an October through September year.

(4) The compensation due to the Department for a livestock trailing permit will be based on the total number of animals crossing the state land in a single “round trip” per year as follows:

(a) For 500 animal units or less the required compensation is $150;

(b) For 501 to 999 animal units the required compensation is $250; and

(5) In addition to any other remedies available, the Department will impose the legal rate of interest and any applicable late fees on unpaid balances owed the Department pursuant to ORS 82.010.

(6) Unless otherwise authorized by the Department, annual compensation due must be paid to the Department each year within 30 calendar days of the date of the Department’s billing notice.

History

Statutory/Other Authority: ORS 274.045, 273.051 & 273.805 - 273.825
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 5-2011, f. & cert. ef. 12-13-11
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0085 Lease Renewals

(1) At least 180 calendar days prior to the current lease expiration date, the Department will send the lessee of record a notice by certified mail indicating the date of expiration along with a lease renewal application form. The lease renewal application form must be received by the Department not less than 90 calendar days prior to the expiration of the lease.

(2) The Department may review the lands incorporated in the leasehold prior to expiration of the lease to determine their continued suitability for grazing.

(3) Upon receipt of a completed lease renewal application form, the lease will be renewed for a term of up to 10 calendar years unless:

(a) Otherwise specified in the applicable forage lease;

(b) The land has been reclassified according to the Asset Management Plan to a land classification other than rangelands;

(c) The lessee has not complied with the terms of the lease, related statutes, these rules, or any applicable LMP and amendments thereto; or

(d) The Department determines that the renewal of the lease for all or portions of the leasehold is contrary to local, state, or federal law; or inconsistent with the Land Board's fiduciary responsibilities; or will not result in the greatest public benefit, consistent with the conservation of the resource under sound techniques of land management as required by Article VIII, Section 5, of the Oregon Constitution.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09

Or. Admin. R. 141-110-0100 Leasehold Management Plan (LMP)

(1) A leasehold management plan consists, at a minimum, of the following:

(a) Identification of the leasehold area;

(b) Identification of the presence and condition of the natural (for example, wildlife or water), recreational, cultural and historic resources within the leasehold affected by the lease;

(d) Identification of condition of the leasehold’s forage resources;

(e) Determination of the carrying capacity (in AUMs) and forage production capabilities;

(f) Identification of leasehold management issues and concerns as they relate to livestock grazing;

(g) Establishment of leasehold management objectives and monitoring methods;

(h) Establishment of leasehold management schedules including but not limited to grazing use or review of annual operating plans (AOPs); and

(i) Identification of new treatments or improvements designed to achieve leasehold management objectives.

(2) LMPs will be developed by the Department in consultation with the lessee, other affected landowners, and applicable local, state, and federal agencies, tribal interests, and any interested persons.

(3) The Department will prepare a written LMP for each leasehold unless it is determined by the Department that doing so would be inefficient or uneconomical. All LMPs will be periodically reviewed and revised.

(4) The Department will send a notice of the availability of a draft LMP to:

(a) Persons indicating an interest in the leasehold;

(b) Affected state or federal agencies, and tribal interests; and

(5) Recipients of the notice of availability of the draft LMP shall have 30 calendar days from the date of the notice to submit comments to the Department.

(6) Upon receipt of comments the Department will:

(a) Review the comments;

(b) Revise the draft LMP as applicable;

(d) Issue the LMP.

(7) Provided that they substantially conform to the provisions of OAR 141-110-0100, the Department will accept any one of the following in lieu of an LMP:

(a) An Allotment Management Plan approved by the Bureau of Land Management or the U.S. Forest Service; or

(b) A coordinated Resource Management Plan previously developed by the Department.

(8) The Department will periodically review each LMP to:

(a) Determine the lessee's compliance with the LMP;

(b) Assess the effectiveness of the LMP; and

(9) The Department reserves the right to modify the LMP as necessary after prior consultation with the lessee.

(10) The Department may, after consultation with the lessee, make periodic changes in the carrying capacity of a leasehold due to seasonal climatic or adverse conditions without public notification as required in OAR 141-110-0100.

(11) The LMP, to the extent allowable under the Asset Management Plan and the Department’s SAMP, will be consistent with local, state and federal laws and rules, and approved state or federal coordinated resource plans or watershed management plans or strategies.

(12) Any person may request that the Department review or revise an LMP if plan objectives are not being met. Such a request shall be in writing and state the reason(s) why, or present evidence indicating that a review or revision is necessary.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0110 Subleases and Assignment of Leases

(1) Any lessee wanting to sublease or assign a lease to another person must:

(a) Apply to the Department for prior written authorization on a form provided by the Department; and

(b) Submit a non-refundable application fee as provided for in OAR 141-110-0045(2).

(2) Subleases shall not be approved for more than 5 calendar years and are not to be renewed or assigned.

(3) All such requests must be received by the Department at least 30 calendar days prior to the requested date of transfer.

(4) No sublease or assignment shall occur without the prior written approval of the Department. The Department may condition its approval of any sublease or assignment.

(5) Under an approved sublease, in addition to the annual compensation required under a lease, the lessee must pay to the Department an additional amount equal to 50 percent of the annual lease rental payment for those AUMs approved in the sublease agreement.

(6) The Department will terminate the lease of any lessee who subleases or assigns any part or all of their leasehold to another person without the prior written approval of the Department.

(7) A lessee entering into a sublease approved by the Department will continue to be bound by all terms and conditions of their lease, including the requirements of the LMP.

(8) Assignments, if approved by the Department will be no longer than the remaining unexpired term of the lease. An assignee of a rangeland lease shall be bound by the existing lease and, if applicable, the LMP.

(9) Assignees must meet all applicable requirements as set forth in OAR 141-110-0035.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 8-1996, f. & cert. ef. 12-13-96
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0120 Improvements by Lessee

(1) No improvement may be constructed or placed upon leased land unless the lessee has obtained the prior written authorization of the Department.

(2) The Department will consider the following factors before deciding whether to authorize a proposed improvement on a leasehold:

(a) Need for the proposed improvement;

(b) Benefits of the proposed improvement;

(c) Impacts of the proposed improvement on the leasehold, fish and wildlife habitat, recreational resources, historical resources and cultural resources; and

(d) Whether the proposed improvement is permitted by the local jurisdiction's acknowledged comprehensive plan and land use regulations.

(3) All improvements must be maintained by the lessee in good working order as appropriate to the type of improvement.

(4) The lessee must take all reasonable and prudent efforts to ensure that an improvement does not pose a danger to public safety.

(5) All improvements to the leasehold become the property of the Department.

(6) If water permits or rights are required for the proposed improvement, such permits or rights are to be applied for and issued in the name of the Department in accordance with applicable statutes governing the appropriation and use of water.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Or. Admin. R. 141-110-0135 Livestock Trailing

(1) Livestock trailing by any person other than the forage lessee operating within their leasehold requires a livestock trailing permit.

(2) Any person applying for a livestock trailing permit must do so in writing on a form provided by the Department and include the application fee as provided in OAR 141-110-0045(3).

(3) The application must be received (unless otherwise agreed to by the Department) at least 30 calendar days prior to the intended livestock trailing.

(4) Upon receipt of a completed application the Department will determine whether or not to issue the livestock trailing permit.

(5) The Department may issue, deny, or issue with conditions the livestock trailing permit only after a determination that the applicant has shown that the proposed livestock trailing will not:

(a) Substantially interfere with the activities of the forage lessee or any other authorized uses of the area subject to the livestock trailing;

(b) Substantially impact fish, wildlife, recreational, cultural or other resources; or

(6) A livestock trailing permit will be issued for a specific time period and with specific terms, including compensation and conditions. The livestock trailing permit is not renewable.

(7) Compensation due to the Department for a livestock trailing permit will be based on the total number of animals crossing the state land in a single “round trip” per year as provided in OAR 141-110-0080(4).

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09

Or. Admin. R. 141-110-0145 Livestock Trespass

(1) Any unauthorized livestock found on state land will be considered in trespass.

(2) The Department will identify and notify the owner of all livestock found in trespass.

(3) The Department may pursue all appropriate legal remedies to assure that the Department is fairly compensated by the livestock owner for the impacts (including resource damages) of the trespassing livestock and that future trespass is deterred.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09

Or. Admin. R. 141-110-0150 Appeals

An applicant for an authorization or any other person adversely affected by a decision of the Department concerning an authorization, closure or restriction to the use of state-owned lands may appeal the decision to the Director.

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

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

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

(4) If the appeal is regarding a decision made by the Land Board, the Director may recommend to the Land Board either that the authorization issuance or denial be affirmed based on the merits of the request, or that the Land Board authorize initiation of a contested case proceeding.

History

Statutory/Other Authority: ORS 273.045 & 273.051
Statutes/Other Implemented: ORS 273.805, 273.815 & 273.825
DSL 7-2009, f. & cert. ef. 10-20-09
DSL 1-1999, f. & cert. ef. 3-2-99
LB 3-1995, f. & cert. ef. 10-13-95
LB 4-1994, f. & cert. ef. 8-2-94

Division 120 WETLAND CONSERVATION PLAN WETLAND RESOURCE DESIGNATIONS AND ANALYSIS OF ALTERNATIVES

Or. Admin. R. 141-120-0000 Application

(1) This rule applies to decisions concerning wetland resource designations and analysis of alternatives made after the local government sponsoring the Wetland Conservation Plan (WCP) has:

(a) Defined the WCP area;

(b) Completed the required Local Wetlands Inventory (LWI) according to the criteria of OAR 141-086-0180 to 141-086-0240;

(c) Completed the required wetland function and value assessments using an assessment methodology acceptable to the Division; and

(d) Developed WCP Goals for the planning area that consider the legislative findings in ORS 196.668.

(2) Consistent with ORS 527.722 of the Forest Practices Act, this rule does not apply to forest practices as defined in ORS 527.620 in areas regulated by the Forest Practices Act (ORS 527.610 to 527.770, 527.990(1) and 527.992).

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
DSL 2-2001, f. & cert. ef. 2-26-01
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0010 Purpose

(1) This rule:

(a) Identifies the procedures for local governments and the Director to use when analyzing alternatives to adversely impacting wetland systems;

(b) Provides criteria for local governments to use when designating wetlands or portions of wetlands within the WCP into Protection, Conservation or Development Categories; and

(c) Defines the minimum information required of local governments to allow the Director to develop findings of fact to determine whether practicable alternatives to adversely impacting wetlands or portions of wetlands designated into the Development Category are available. This information includes the determination of whether:

(A) A public need for the proposed use is, set forth in the acknowledged local comprehensive plan;

(B) Adverse impacts to wetland systems are avoided to the extent practicable; and

(2) This rule is not meant to establish the definitive analysis for every aspect of wetland conservation planning. In addition to meeting the requirements of this rule, each jurisdiction must also comply with all parts of ORS 196.668 to 196.692 and with its own and other relevant ordinances and state and federal laws, including Section 404 of the Clean Water Act.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0020 Applicable Policies

The Division shall adhere to the following policies when providing technical assistance to local governments developing a WCP and when reviewing a WCP proposed for the Director’s approval:

(1) Wetland systems are important ecological components of the landscape and provide numerous functions and values;

(2) The Division shall ensure that full replacement of wetland functions and values, lost under the authority of OAR 141-120-0000 to 141-120-0230, occurs and that a stable resource base is maintained;

(3) Local governments have the authority to establish and, as necessary, adjust the Urban Growth Boundary (UGB) and the Division shall accept decisions, acknowledged by the Land Conservation and Development Commission or by operation of law, that relate to setting or adjusting the UGB or the boundaries of an Urban Service Area or Exception Area;

(4) The state shall promote the protection, conservation and best use of wetland resources and their functions and values through the integration and close coordination of state-wide planning goals, local comprehensive plans and state and federal regulatory programs (ORS 196.672(1));

(5) Because WCPs are meant to resolve conflicts between the protection and conservation of wetlands and the use of wetlands for development, the WCP area shall include undeveloped land with development conflicts involving wetlands;

(6) The Division shall not approve a WCP that merely attempts to obtain state authorization for individual development projects including those that cover large areas, are multi-phased or are controlled by a single ownership or management entity;

(7) Wetlands designated in the Protection Category and those used for compensatory mitigation under a WCP shall be protected in perpetuity. A protection designation may only change as a result of a plan amendment (ORS 196.684), if, after opportunity for public comment, the Director finds that a substantial change in circumstance has occurred; and

(8) For the purpose of this rule, the determination of whether a wetland provides a function or value, has potential to provide a function or value, does not provide a function or has enhancement potential will be made according to the Oregon Freshwater Wetland Assessment Methodology unless the local jurisdiction has obtained written approval from the Division to use a different assessment methodology. If a different assessment methodology is approved then equivalent terminology will be set out in the Division’s letter of approval.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0030 Definitions

For purpose of this rule, all definitions in OAR 141-120-0005 are also applicable.

(1) “Buildable Lands Inventory” means the inventory of housing needs as defined in OAR 660-007-0005(3) and 660-008-0005(2) and inventory of industrial and commercial lands as defined in 660-009-0015(3).

(2) “Committed Infrastructure” means utilities and transportation facilities that have been approved, within three years prior to submittal of the WCP, under the Oregon Removal-Fill Law and have funding available for construction.

(3) “Conservation Category” means a wetland resource designation that allows for actions that conserve, restore or enhance the functions and values of the wetland resource.

(4) “Development Category” means a wetland resource designation that allows for actions that will convert the wetland resource to other uses.

(5) “Director” means the Director of the Oregon Division of State Lands or the Director’s designate.

(6) “Division” means the Oregon Division of State Lands.

(7) “Exception Area” means rural lands for which an exception to the Statewide Planning Goals has been acknowledged.

(8) “Full Replacement of Wetland Functions and Values” means no net loss of wetland functions or values in the WCP area.

(9) “Functions and Values” means the ecological and biological processes and social benefits that the wetland or wetland system provides.

(10) “Inhabited by” means that a species uses the area for rearing, feeding, or breeding or as a migration or dispersal corridor.

(11) “Isolated wetland” means a wetland without a permanent or seasonal surface connection to another wetland or water of the state.

(12) “Legally Protected” means development is prevented by operation of state, federal or local law. Examples of legally protected wetlands include those protected under the federal Endangered Species Act, Statewide Planning Goal 17, or by plat restrictions. Protection under the WCP is in addition to, not in place of, the original legal protection applicable to these wetlands.

(13) “Local Government” means any city, county or metropolitan service district formed under ORS Chapter 268 or an association of local governments performing land use planning functions under ORS 197.190.

(14) “Ongoing Use” means an allowed use occurring when the WCP is approved. A use is not ongoing if it has not occurred within the last five years.

(15) “Planned Infrastructure” means utilities and transportation facilities not built but specifically identified in the acknowledged local comprehensive plan.

(16) “Protection Category” means a wetland resource designation that ensures long-term maintenance of the existing functions of the wetland resource.

(17) “Public Need” for the purpose of this rule, means the need for the land uses designated in the local comprehensive plan for those areas placed into the development category in the WCP.

(18) “Stable Resource Base” means no net loss of wetland area within the WCP area.

(19) “Urban Growth Boundary” means an Urban Growth Boundary included or referenced in an acknowledged local comprehensive plan.

(20) “Urban Service Area” means an area identified within the acknowledged local comprehensive plan that is developed, or capable of being developed, at urban densities.

(21) “Wetland Conservation Plan Goals” (WCP Goals), for the purpose of this rule, means the objectives that the WCP is intended to achieve. WCP Goals may be divided into natural resource, economic and other applicable goals.

(22) “Wetland Resource Designation” means placing wetlands or portions of wetlands into “protection,” “conservation,” or “development” management category under ORS 196.678(2)(d).

(23) “Wetland System” means a wetland complex that is hydrologically or biologically connected in the landscape.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0040 Wetland Resource Designations

(1) ORS 196.678(2)(d) and 196.681(3)(c) require that wetlands or portions of wetlands within a WCP area be placed into a protection, conservation or development category.

(2) The wetland resource designation(s) must take into consideration the capability of the wetland system to withstand alterations while maintaining important wetland functions.

(3) Local governments shall identify wetlands that meet the criteria for the Protection Category (OAR 141-120-0070) and designate these wetland resources into the Protection Category prior to designating wetland resources into the Conservation or Development Categories.

(4) Wetlands designated into the Protection Category shall not be redesignated into the Development or Conservation Categories except as allowed under OAR 141-120-0020(7).

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0050 The Purpose of the Protection Category

The purpose of placing wetlands or portions of wetlands into the Protection Category is to protect important wetland resources in perpetuity except as specified in OAR 141-120-0020(7), and preserve them for the functions and values they provide for the people of Oregon.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0060 Management Directive for the Protection Category

Local governments shall ensure that areas in the Protection Category are managed to:

(1) Allow each site’s natural ecological processes to occur; or

(2) Maintain or enhance the existing wetland type, functions or values.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0070 Designation Criteria for the Protection Category

(1) Local governments at a minimum shall place into the Protection Category wetlands or portions of wetlands that:

(a) Contain uncommon wetland plant communities including those listed in the Oregon Natural Heritage Program’s Classification and Catalog of Native Wetland Plant Communities in Oregon as G3 or S3 or lower;

(b) Are legally protected;

(c) Are inhabited by or support any species listed by the federal or state government as a sensitive, threatened or endangered species in Oregon unless consultation with the appropriate state or federal agency indicates that the wetland is not important for the species; or

(d) Are listed as “Wetlands of Special Interest for Protection” in the Oregon Freshwater Wetland Assessment Methodology; or

(e) Are located in designated floodways; or

(f) Are identified as habitat for spawning or rearing anadromous salmonid fish by the Oregon Department of Fish and Wildlife or the National Marine Fisheries Service.

(2) In addition to areas protected under OAR 141-120-0070(1), local governments should place into the protection category wetlands or portions of wetlands that meet protection criteria established as part of the WCP to achieve WCP Goals.

(3) For the purposes of this section, the term “floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the 100 year flood without cumulatively increasing the water surface elevation more than a designated height.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0080 Uses Allowed in the Protection Category

(1) A local government may prohibit all human use in areas placed in the Protection Category.

(2) A local government may allow only the following uses in areas placed in the Protection Category without additional review:

(a) Passive recreation activities that require no structures, such as bird watching, canoeing or nature walks;

(b) Restoration of native plant species by manual means;

(c) Sensitive, threatened and endangered species recovery programs that do not involve physical or hydrological alteration of the area; and

(d) Educational uses or research that does not involve physical or hydrological alterations that will adversely affect wetland functions.

(3) A local government may allow the uses listed below if they meet the management directives of OAR 141-120-0060 after reviewing the use against and determining that the proposed use meets criteria and standards set out in the WCP implementing ordinances:

(a) Walkways, trails, viewing structures and signs;

(b) Maintenance of existing structures and trails;

(d) Management activities to protect, maintain or enhance existing wetland types or functions or values;

(e) Sensitive, threatened and endangered species recovery programs that require physical or hydrological alterations;

(f) Limited harvest of plants or non-game animals that is consistent with state, local and federal law;

(g) Restoration and other enforcement actions needed to repair damage caused by unauthorized activities;

(h) Fishing or hunting consistent with state, local and federal law; and

(i) Construction of committed infrastructure.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0090 The Purpose of the Conservation Category

The purpose of placing wetlands or portions of wetlands into the Conservation Category is:

(1) To conserve, restore or enhance the functions and values of the wetland resources for the long-term benefits provided; and

(2) To authorize those uses allowed under OAR 141-120-0130.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0100 Management Directive for the Conservation Category

Local governments shall ensure that areas in the Conservation Category are managed to conserve or enhance the functions and values of the wetland resource except as impacted by uses allowed under OAR 141-120-0130.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0110 Compensatory Mitigation Requirement for the Conservation Category

Compensatory mitigation is required for all uses allowed in the Conservation Category that cause permanent loss of wetland functions, values or wetland area.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0120 Designation Criteria for the Conservation Category

Local governments may place wetlands or portions of wetlands into the Conservation Category that do not meet the designation criteria for the Protection Category. The Conservation Category should include wetlands that:

(1) Are located within a designated 100 year flood plain;

(2) Provide a function or value listed as a WCP goal;

(3) Provide enhancement potential as defined in the Oregon Freshwater Assessment Methodology or an assessment methodology acceptable to the Division;

(4) Are suitable for the uses set out in OAR 141-120-0130; or

(5) Maintain continuity of a:

(a) Wildlife corridor;

(b) Stream corridor; or

(6) For the purposes of this section, the term “100 year flood plain” means the area susceptible to being inundated by water during a flood having a one percent chance of occurring in a given year.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0130 Uses Allowed in the Conservation Category

(1) A local government may allow the following uses in areas placed in the Conservation Category without additional review:

(a) All uses allowed under OAR 141-120-0080(2);

(b) Actions to control vegetation required by the local Fire Marshall or ordinances to prevent fire hazards; and

(2) A local government may allow other uses that meet the management directives in OAR 141-120-0100 after reviewing the use against and determining that the proposed use meets criteria and standards set out in the WCP implementing ordinance, including:

(a) Planned infrastructure as authorized in OAR 141-120-0180, and

(b) Construction of committed infrastructure.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0140 The Purpose of the Development Category

The purpose of placing wetlands or portions of wetlands into the Development Category is to help balance the public’s need for development with the need to protect and conserve important wetland resources.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0150 Management Directive for the Development Category

(1) To offset the adverse impacts of allowing wetlands to be used for development, the associated mitigation plan for the WCP shall ensure full replacement of wetland functions and values and shall maintain a stable resource base.

(2) Until development projects are reviewed and authorized in accordance with the WCP or the Director’s order approving the WCP, local governments shall ensure that areas in the Development Category are managed according to OAR 141-120-0100.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0160 Designation Criteria for the Development Category

(1) A local government may designate isolated wetlands one acre or less in area into the Development Category if:

(a) The local government determines that there is no less damaging practicable alternative within the WCP area with the same zoning; and

(b) The function and value assessment indicates that the wetland:

(A) Provides no functions or values and has little enhancement potential; or

(B) Provides or has potential to provide only functions or values that are not listed as WCP Goals; or

(C) The local government demonstrates with findings of fact and supporting reasons that the wetland can reasonably be expected to be adversely impacted by committed infrastructure; and

(2) A local government may designate wetlands or portions of wetlands notwithstanding the wetland’s size or connectivity into the Development Category if:

(a) The local government determines that there is no less damaging practicable alternative with the same comprehensive plan land use designation within the WCP area; and

(b) The functions and values assessment for the wetland indicates that the wetland:

(A) Provides no function and has little enhancement potential; or

(B) Provides or has potential to provide only functions or values that are not listed as WCP Goals and has little enhancement potential.

(3) A local government may designate wetlands or portions of wetlands notwithstanding the wetland’s size or connectivity into the Development Category if:

(a) The functions and values assessment for the wetland indicates that the wetland provides or has potential to provide a function or value that is listed as a WCP Goal or has enhancement potential; and

(b) The local government:

(A) Determines that there is no less damaging practicable alternative with the same comprehensive plan land use designation within the UGB, the Urban Service area or the Rural Service area; and

(B) Provides an explanation, in the form of a finding of fact with supporting reasons, as to why the comprehensive plan’s land use designation cannot be changed to avoid impacting the wetland.

(4) For the purposes of OAR 141-120-0160, the term “less damaging practicable alternative” means “less environmentally damaging practicable alternative.”

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0170 Uses Allowed in Development Category Wetlands

A local government may allow the following uses after reviewing the proposed use against criteria and standards set out in the WCP implementing ordinances, that ensure that the uses meet the management directives in OAR 141-120-0150 and are intended to achieve WCP Goals:

(1) All uses allowed in the WCP and implementing zoning ordinances;

(2) Construction of committed infrastructure; and

(3) Biofiltration or other wetland water treatment systems provided the proposed project meets all applicable water quality standards.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0180 Planned Infrastructure

Planned infrastructure may be authorized in a wetland designated in the Conservation Category in the following manner:

(1) The party sponsoring the planned infrastructure may receive authorization directly from the Division under ORS 196.682; or

(2) The Director may find that the project avoids wetlands in the WCP area to the degree practicable. If so, the Director’s order approving the WCP may identify the approximate location of the planned infrastructure if the local government:

(a) Determines that the need for the planned infrastructure exists by showing that:

(A) Existing development is dependent on the planned infrastructure; or

(B) The planned infrastructure is required to allow access to buildable uplands.

(b) Provides a showing of actions considered and taken to avoid and minimize impacts to the wetland system in the planning area; and

(d) To obtain authorization from the Division to construct planned infrastructure with its approximate location identified in the Director’s order:

(A) The local government shall provide:

(i) The final alignment and right of way for the planned infrastructure; and

(ii) The steps considered and taken to avoid and minimize impacts to the wetland including bridging, culverting and placing the infrastructure at other locations within the wetland.

(B) The Director shall evaluate the information provided under paragraph (2)(d)(A) of this rule in the expedited fashion authorized under ORS 196.682.

(3) The Director’s order approving the WCP may authorize construction of planned infrastructure if the local government:

(a) Determines that the need for the planned infrastructure exists by showing that:

(A) Existing development is dependent on the planned infrastructure; or

(B) The planned infrastructure is required to allow access to buildable uplands.

(b) Provides a showing of actions considered and taken to avoid and minimize impacts to the wetland system in the planning area;

(d) Provides the steps considered and taken to avoid and minimize impacts to the wetland including bridging, culverting and placing the infrastructure at other locations within the wetland.

(4) “Showing” in this rule means findings of fact with supporting reasons.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0190 Implementing Ordinances

To meet the requirements of this rule, the local government’s implementing ordinances shall include standards and criteria that regulate:

(1) Alteration or removal of vegetation including trees;

(2) Uses allowed in wetlands placed into the Protection and Conservation Categories after review by the local government; and

(3) How protection in perpetuity for wetlands designated protection is provided.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0200 Information Requirements

Local governments shall provide:

(1) The implementing ordinances that set out the standards and criteria necessary to ensure that allowed uses comply with the management directives for protection, conservation and development and an explanation of how the ordinance ensures compliance with the management directives;

(2) All determinations, showings and findings with supporting documents and maps developed or used to fulfill requirements of OAR 141-120-0000 to 141-120-0230;

(3) Maps of the land use designations used in the local comprehensive plan;

(4) Maps if available, and explanatory narrative of the local buildable lands inventory;

(5) Where applicable, consideration of plans and projects of adjacent jurisdictions;

(6) The list of sites placed into each Wetland Resource Designation and supporting information; and

(7) Information required by OAR 141-120-0180 to determine the method to be used for planned infrastructure in the Director’s order.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0210 Director’s Determinations

When reviewing the local government’s wetland resource designations and analysis of alternatives, the Director shall:

(1) Consult with the local government and, as necessary, the Department of Land Conservation and Development on the information provided under OAR 141-120-0200.

(2) Determine whether the local government has:

(a) Applied the wetland resource designation criteria as intended;

(b) Developed standards and criteria for reviewing allowed uses that ensure the uses meet the management directives for the appropriate wetland resource designation;

(d) Minimized the impacts of fill or removal to the wetland system in the WCP area; and

(e) Demonstrated that the WCP provides protection in perpetuity for areas placed into the Protection Category.

(3) Determine whether planned infrastructure will be authorized in the Director’s order approving the WCP or identified for locating in any approximate area of the WCP area.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0220 Jurisdictions Not Governed by this Rule

A jurisdiction that submits a WCP to the Division within six months from the date this rule is adopted may be exempt from the requirements of OAR 141-120-0000 to 141-120-0230 if, within 90 days from adoption of this rule, the jurisdiction demonstrates to the Director’s satisfaction that the jurisdiction has made substantial progress toward designating wetland resources for protection, conservation or development and analysing alternatives to adversely impacting wetlands by other means.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Or. Admin. R. 141-120-0230 Citation of Statutory Authority

ORS 196.692 authorizes the Division of State Lands to adopt rules to carry out the provisions of ORS 196.668 through 196.692, Wetland Inventory and Wetland Conservation Plans.

History

Statutory/Other Authority: ORS 196.692
Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350
LB 6-1994, f. & cert. ef. 10-20-94

Division 121 NAVIGABILITY DETERMINATIONS

Or. Admin. R. 141-121-0000 Applicability

(1) These rules, authorized by ORS 274.400 through 274.412, prescribe the procedure which the Land Board and the Division will follow to assert title to land underlying Oregon’s waterways from the date of rule adoption.

(2) These rules do not apply to:

(a) Those parts of waterways which have had their ownership determined through adjudication by a court having jurisdiction to determine title to real property in Oregon; and

(b) All tidally influenced waters.

History

Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412
Statutes/Other Implemented: ORS 274.400 - 274.412
LB 4-1996, f. & cert. ef. 6-14-96

Or. Admin. R. 141-121-0010 Definitions

(1) “Affected Property Owners” refers to those people listed in the records of the county assessor as owners of property fronting, abutting or underlying, or having a recorded easement allowing access to a waterway segment at the time that the Division undertakes a navigability study of the subject waterway.

(2) “Broad And Substantial Public Interest” exists when the Land Board, after considering the public’s right to the use of a waterway segment and the authority of the state and local governments, determines that an administrative determination of navigability is required to:

(a) Help resolve conflicts between property owners, between users (including recreational users), or between users and affected property owners of a waterway segment;

(b) Facilitate management or protection of a waterway segment (for example, its environmental components or scenic, historic and cultural values); and/or

(3) “Declaration” is a final decision of the Land Board concerning the nature and extent of the state’s claim to the bed and banks underlying the waterway segment under consideration.

(4) “Division” means the Oregon Division of State Lands.

(5) “Land Board” means the Oregon State Land Board.

(6) “Navigable” and “Navigability” are defined by the criteria established by federal courts having jurisdiction to determine the extent of state ownership of land underlying a waterway segment.

(7) “Navigability Study” is the process of collecting, evaluating, and preparing a report relating to the use and characteristics of a waterway segment in order to determine if it is navigable.

(8) “Person” is an individual, special interest group, political subdivision or government agency, or any corporation, association, firm, partnership, joint stock company, limited liability company, limited liability partnership, or quasi-public corporation.

(9) “Requester” is any person requesting that the Land Board direct the Division to conduct a navigability study.

(10) “Sufficient Economic Justification” exists when the Land Board decides that a determination of navigability will result in revenue accruing to the Common School Fund from a leasable use (as defined by Division administrative rules) of the waterway segment or underlying land (for example, the placement of marinas or log rafts, or the extraction of aggregate).

(11) “Title” is fee simple ownership to property, in this case, the bed and banks underlying a waterway segment.

(12) “Waterway” refers for the purposes of these rules to any discrete, identifiable body of water and its bed and banks in Oregon including, but not limited to, rivers, streams, and lakes.

History

Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412
Statutes/Other Implemented: ORS 274.400 - 274.412
LB 4-1996, f. & cert. ef. 6-14-96

Or. Admin. R. 141-121-0020 Request for a Navigability Study

(1) Only the Land Board can direct the Division to undertake a navigability study.

(2) All requests to undertake a navigability study shall be submitted to the Division in writing and shall, at a minimum, include the following information:

(a) The name and specific segment (identified through the use of river miles or other clearly locatable geographic place names or features) of the waterway segment for which a navigability study is requested;

(b) Discussion and evaluation of the substantial economic justification for, and/or broad and substantial public interest in support of a navigability study;

(c) Description of any use conflicts, contact with local, state and federal authorities, and efforts to resolve problems; and

(d) Available evidence that the subject waterway segment is or is not likely to be navigable.

(3) Navigability study requests which are incomplete will be returned to the requester by the Division with the deficiencies noted in writing. The Division shall not act on requests until all information required in OAR 141-121-0020(2) is provided.

(4) The Division shall give public notice of receipt of a complete request to undertake a navigability study of a particular waterway segment. This notice shall be published in a statewide newspaper, and also a newspaper of general circulation in the area in which the waterway segment is located. The notice shall be sent to persons requesting such notices and other interested persons (for example, local government, watershed councils, etc.).

(5) The Division shall refer all complete navigability study requests to the Land Board. The Division shall fully describe the request and give the Division’s recommendation(s) based on its evaluation of the following considerations:

(a) Whether sufficient economic justification and/or broad and substantial public interest exists to justify such a study;

(b) If other alternative means exist to resolve the use conflicts identified in the study request;

(d) The cost of conducting the required study; and

(e) The Division’s workload and the availability of funding.

(6) The Division shall ask the Land Board to direct it to undertake a navigability study, postpone undertaking the study, reject the request, or provide it with other instructions.

History

Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412
Statutes/Other Implemented: ORS 274.400 - 274.412
LB 4-1996, f. & cert. ef. 6-14-96

Or. Admin. R. 141-121-0030 Process for Conducting a Navigability Study

A navigability study shall consist of the following actions in the order presented:

(1) If the Land Board directs the Division to conduct a study, the Division shall give public notice that it will undertake the study. This notice shall be called a “Notice Of Initiation Of Navigability Study” and shall:

(a) Describe the purpose of the study and the location of the waterway segment under consideration;

(b) Request that any persons having information relevant to the study contact the Division;

(c) Be published not less than once each week for three (3) successive weeks in a statewide newspaper, and also a newspaper of general circulation in the area in which the waterway segment is located; and

(d) Be sent to affected property owners, persons who request such notices, and other interested persons (for example, local government, watershed councils, etc.).

(2) If the Land Board decides to reject a request to undertake a study, the Division shall provide written notice of the Land Board’s decision to the requester.

(3) A draft navigability study of the waterway segment shall be prepared by the Division for public review and comment. This report shall contain the Division’s proposed draft findings and conclusions as to whether or not the waterway segment is navigable.

(4) The Division shall give public notice of the completion of the Draft Navigability Report. This notice shall be called “Notice Of Availability Of Draft Navigability Study Report” and shall:

(a) Present the Division’s proposed draft findings and conclusions as to whether the subject waterway is navigable;

(b) Describe how the public may obtain a copy of the Draft Navigability Report, comment on, and/or present additional evidence concerning the study;

(d) Give the date and time of the Land Board meeting at which additional public testimony will be heard;

(e) Be published not less than once each week for three (3) successive weeks in a statewide newspaper, and also a newspaper of general circulation in the area in which the land underlying the subject waterway segment is located; and

(f) Be sent to affected property owners, persons who request such notices, and other interested persons (for example, local government, watershed councils, etc.). The Division shall also send a copy of the Draft Navigability Study to county public libraries in the area of the subject waterway segment.

(5) The Division shall hold at least one hearing in the area of the waterway segment to obtain public input.

(6) After the public hearings have been held, the Division shall analyze the input received and shall submit the following information to the Land Board:

(a) The Draft Navigability Report;

(b) A summary of all input received by the Division in response to the Draft Navigability Report; and

(c) The Division’s draft findings and conclusions as to whether the subject waterway segment is navigable, citing information in the hearing record to support and/or refute the conclusion(s) made. This information shall be presented to the Land Board at a scheduled meeting. The Division’s recommendations shall be made available to the public at least seven (7) calendar days prior to the Land Board meeting. The public shall be given an opportunity at this meeting to submit additional testimony to the Land Board. The comment period shall close seven (7) calendar days after this Land Board meeting, unless extended by an action of the Land Board.

(7) The Division shall consider and summarize all the input and testimony received and shall prepare a Final Navigability Report.

History

Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412
Statutes/Other Implemented: ORS 274.400 - 274.412
LB 4-1996, f. & cert. ef. 6-14-96

Or. Admin. R. 141-121-0040 Adoption of Navigability Report

(1) The Division shall select a date and time when it will present the Final Navigability Report to the Land Board, and shall prepare a meeting notice. The notice shall:

(a) Briefly describe the findings and conclusions of the Final Navigability Report and advise people how to obtain a copy;

(b) Be published not less than once each week for three (3) successive weeks in a statewide newspaper, and also a newspaper of general circulation in the area in which the waterway segment is located; and

(c) Be sent to affected property owners, persons who request such notices, and other interested persons (for example, local government, watershed councils, etc.). The Division shall also send a copy of the Draft Navigability Study to county public libraries in the area of the subject waterway segment.

(2) The Land Board shall consider the evidence in the record and the Division’s findings and conclusions as contained in the Final Navigability Report, and shall make a decision concerning the nature and extent of the state’s claim to the land underlying the waterway segment. Based on the information provided, the Land Board may adopt the findings and conclusions contained in the Final Navigability Report if substantial evidence in the record supports the report’s findings and conclusions.

(3) If the Land Board adopts the findings and conclusions contained in the Final Navigability Report, it shall issue a written declaration which:

(a) States the nature and extent of the state’s claim to the land underlying the subject waterway segment;

(b) Clearly describes the location of the land claimed by the state using common descriptions or maps designed to identify the land or waterway segment in a manner intelligible to the lay person and useful in establishing the exact location of the state claim in relation to existing legal descriptions;

(c) Advises that any person aggrieved may seek judicial review of the declaration subject to the provisions of ORS 183.310 to 183.550;

(d) Is published not less than once each week for three (3) successive weeks in a statewide newspaper, and also a newspaper of general circulation in the area the waterway segment is located; and

(e) Is sent to affected property owners, persons who request such notices, and other interested persons (for example, local government, watershed councils, etc.).

History

Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412
Statutes/Other Implemented: ORS 274.400 - 274.412
LB 4-1996, f. & cert. ef. 6-14-96

Division 122 RULES FOR GRANTING EASEMENTS ON TRUST LANDS

Or. Admin. R. 141-122-0010 Purpose and Applicability

(1) These rules:

(a) Govern the granting of easements on state-owned Trust land as specified herein.

(b) Do not apply to the:

(A) Granting of easements for State owned submerged and submersible lands administered under OAR 141-123 (Rules for Granting Easements on Non-Trust Land)

(B)Granting of easements for fiber optic and other cables on state-owned submerged and submersible land within the Territorial Sea, an activity governed by OAR 141-083 (Rules For Granting Easements For Fiber Optic And Other Cables On State-Owned Submerged and Submersible Land Within The Territorial Sea);

(C) Granting of authorizations for hydroelectric projects on state-owned Trust Land, an activity governed by OAR 141-087 (Hydroelectric Projects);

(D) Dedication of roads or rights of way required of the Department or its agents by local government resulting from a local land use approval involving state-owned land; or

(E) Existing valid easements or right of ways granted, by the Department or State Land Board, prior to the adoption of these rules.

(c) Require prior authorization for all uses described under OAR 141-122-0010(2) and (3) unless otherwise exempt from easement under the provisions of OAR 141-122-0010(4) of these rules.

(d) Contain specific provisions relating to the granting of easements by:

(A) The Department and the Oregon State Forester on Common School Forest Land; and

(B) The Department to persons who have or will place a structure or facility on state-owned Trust Land necessary to take water for which they have a right to use the water.

(2) Unless otherwise exempt under the provisions of OAR 141-122-0010(4) of these rules, developments and uses of state-owned land subject to easement include, but are not limited to the following:

(a) Water, gas, electric and communication service lines (including fiber optic cables) and associated equipment such as pumping stations, transformers and meters;

(b) Innerducts and conduits for cables (regardless of whether they contain a cable or are in use);

(d) Drainage and irrigation works;

(e) Sewer, storm, and cooling water lines, including storm water outfalls and other outfalls;

(f) Bridges, skylines, and logging lines;

(g) Railroad and light rail track, bridges, stations, depots, and other related facilities;

(h) Roads and trails of all types;

(i) Overhead transportation lines (for example, skylines, tramways, logging lines, etc.);

(j) Storage of materials (for example, sand, gravel, dredge spoils, etc.); and

(k) Other encroachments.

(3) The Department Director may determine that other uses and developments similar to those specified in OAR 141-122-0010(2) are also subject to authorization by, or exempted from an easement and these rules.

(4) An easement is not required for uses or developments on Trust Land that would require an easement under these rules if the person undertaking the use or owning the development has obtained a valid authorization from the Department pursuant to the provisions of OAR 141-110 (Management and Leasing of Rangeland Forage); OAR 141-125 (Authorizing Special Uses on State-Owned Land), provided the proposed use or development is located on the land which is subject of the authorization, is incidental to the specific use that is the subject of the authorization, and does not result in an additional burden on the land.

(5) A person who is exempt from obtaining an easement under the provisions of OAR 141-122-0010(4) may apply to obtain an easement, and the Department may authorize an easement even though none is required under these rules. The application shall be processed in accordance with OAR 141-122-0050.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0020 Policies

(1) Pursuant to Article VIII, Section 5(2) of the Oregon Constitution, the State Land Board, through the Department, has a constitutional responsibility to manage all land (Trust and Non-Trust) 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."

(2) In addition to the constitutional mandate described in OAR 141-122-0020(1), the Department is required to manage its Trust Land to maximize revenue to the Common School Fund over the long term.

(3) The Department shall follow the guiding principles and resource-specific management prescriptions contained in the Real Estate Asset Management Plan, and consider the comments received from federal, state, and local governments and interested persons when determining whether to authorize or condition an easement on state-owned land.

(4) All uses of state-owned land must conform to applicable local (including local comprehensive land use planning and zoning ordinance requirements), state and federal laws.

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

(6) The Department shall not grant an easement if:

(a) As a result of its circulation for public comment of the application for easement as described in OAR 141-122-0050(4) it determines that the proposed use or development would unreasonably impact uses or developments proposed or already in place within the requested area; or

(b) If the proposed use or development is inconsistent with local, state, or federal laws; or

(d) If the proposed use or development has unacceptable impacts on public health, safety or welfare, or would result in the loss of, or damage to natural, historical, cultural or archaeological resources; or

(e) If the proposed use or development is prohibited by a State Land Board or Department-adopted area closure, use restriction, or area management plan (such as the Lower Willamette River Management Plan; or a Total Maximum Daily Load Implementation Plan); or

(f) If the proposed use or development is inconsistent with any endangered species management plan adopted by the Department under the Oregon Endangered Species Act (ORS 496.171 to 496.192).

(7) The Department shall:

(a) Recognize all valid easements of record on land acquired by the Department as disclosed at the time of acquisition; and

(b) Honor any provisions contained in existing valid easements granted by the Department if the Holder of the easement has complied with all terms and conditions of the easement and applies to the Department for a new easement as prescribed in these rules.

(8) Except as provided in OAR 141-122-0010(4) and OAR 141-122-0100, any person wanting to use or place a development on state-owned land subject to an easement must obtain a written authorization in the form of an easement from the Department prior to beginning the use or placing the development. Additionally, an easement is required for any use or development that encroaches on state-owned land regardless of its height above or below, or manner of crossing the state-owned land.

(9) Unless otherwise exempt by these rules, each individual use of, or development placed on, state-owned land constitutes a separate discrete activity subject to:

(a) An easement specifically authorizing only that individual use or development; and

(b) Payment of compensation as required in these rules.

(10) The Department may, at its discretion, deny an easement if the applicant’s financial status or past business practices, or both, indicate that the applicant may not:

(a) Be able to fully meet the terms and conditions of an easement offered by the Department; or

(b) Use the land applied for in a way that meets the provisions of OAR 141-122-0020.

(11) The Department may, at its discretion, deny an easement if the applicant is out of compliance with the terms of any authorization issued, or is subject to any enforcement or corrective action, by the Department.

(12) An easement cannot be established on Department-managed land by adverse possession regardless of the length of time the use or development has been in existence.

(13) The Department may:

(a) Conduct field inspections to determine if the uses and developments in place on state-owned land are authorized by, or conform with, the terms and conditions of an easement and, if not;

(b) Pursue whatever remedies are available under law and OAR 141-122-0130 to ensure that unauthorized uses subject to an easement on state-owned land are either brought into compliance with the requirements of these rules or removed.

(14) Pursuant to the provisions of ORS 530.490(2) and (3), the Oregon State Forester may issue easements on Common School Forest Land in accordance with these rules (OAR 141-122-0100) and those adopted by the Oregon State Board of Forestry.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0030 Definitions

(1) “Applicant” is any person applying for an easement.

(2) “Appraised Value” means an estimate of current market value of the property (not including improvements) as of a specific date, prepared by a qualified independent appraiser in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP) standards.

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

(4) "Cable" means a conductor of electricity or light with insulation, or a combination of conductors insulated from one another within a single jacket or sheath.

(5) "Circuit" means a system of conductors through which an electric current is intended to flow. A single pole or transmission tower may support one or more circuits, each of which may consist of up to four separate conductors.

(6) "City" means a city incorporated under ORS 221.020 through 221.100.

(7) "City Limits" refers to the boundaries of a city incorporated under ORS 221.020 through 221.100.

(8) "Common School Forest Land" is Trust Land that has been designated or "certified" by the State Land Board and the Oregon Board of Forestry for management by the Oregon Department of Forestry under contract between the State Forester and the State Land Board as allowed in ORS 530.450 through 530.520.

(9) "Communication Line" is any cable including fiber optic cable which transmits electronic information, telephone or television signals or other data.

(10) "Comparative Compensatory Payment" is the amount of money paid to owners of parcels that are similar to the state-owned land requested by an applicant for a use that is the same as, or similar to that requested by an applicant. When the applicant’s requested use is in, on or over Trust Land, the comparative compensatory payment is the maximum amount of money private landowners receive for the same or similar uses in, on or over parcels that they own that are similar to the Trust Land requested by the applicant.

(11) “Compensation” or "Compensatory Payment" is the amount of money, or something of equal value, paid or provided for an easement to the Department for the use of Department-managed land.

(12)"Conduit" is a pipe that protects cables from damage. It may be buried or used in above-ground applications such as bridge crossings. Innerducts may be installed within a conduit to facilitate individual cable installation.

(13) “Deflector” is a structural barrier such as a groin or jetty projecting into a waterway to divert flow away from and prevent eroding sections of the banks of a waterway.

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

(15) "Development" is any structure or physical facility (for example, each cable, innerduct, innerduct and cable, conduit, conduit and cable, pipeline, electrical line, communication line, bridge, road, fence, ditch, reservoir, or easement-associated building) on state-owned land subject to, or authorized by an easement granted by the Department.

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

(17) “Domestic Use” means the use of water for human consumption and household purposes that is necessary for the sustenance of an individual, family unit or household. Domestic use may also include water used by an individual family unit or household for heating or cooling purposes.

(18) "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.

(19) “Easement for Conservation Purposes” is a type of easement granted by the Department that limits uses to protect the property for conservation values, such as fish and wildlife habitat or other ecosystem processes. The easement for conservation purposes is conveyed by the Department when the applicant is not eligible to hold a Conservation Easement or otherwise does not conform to ORS 271.715 to 271.775.

(20) "Encroachment" is an unauthorized development or use, such as, but not limited to a structure, fill, or pile of aggregate, that overlaps on, or otherwise occupies or restricts the full use of state-owned land. An encroachment may be a pipe, conduit, or other structure that has been abandoned in place. An encroachment may also occur when the Holder of an easement granted by the Department extends their use outside of the area authorized by that easement or adds a use or development not authorized.

(21) “Erosion Control Structures” mean revetments, attenuators, deflectors, retaining walls, riprap and other structures placed adjacent to or on State Trust Land

(22) "Fiber Optic Cable" means an insulated and often armored cable used to transmit telecommunications through glass fibers using pulses of light.

(23) “Gas Lines and Associated Fixtures” are the pipelines and required compressor and gate stations, valves, meters, regulators, relief stacks, marker posts, rectifiers, and all other related fixtures and equipment necessary to deliver natural gas from the point of origin to the user.

(24) "Governmental Body" means an agency of the Federal Government, the State of Oregon, and every political subdivision thereof as defined in ORS 271.005.

(25) “Holder” means any person who holds a current authorization from the Department for the use of state-owned lands.

(26) "Individual Use" or "Individual Development" is each separate use of, or development placed on state-owned land.

(27) "Innerduct" is tubing that not only protects fiber optic and other types of cables, but also facilitates their installation. It is often placed inside a conduit, or may be buried directly into the ground

(28) “Intake” is a location or structure through which something is taken in, e.g. water in a channel or pipe from a body of water.

(29) “Irrigation” or “Irrigation Use” means the artificial application of water to crops or plants by controlled means to promote growth or to nourish crops or plants. Examples of irrigation uses include, but are not limited to, watering of an agricultural crop, commercial garden, tree farm, orchard, park, golf course play field or vineyard.

(30) "Market Value” means the most probable price, as of a specified date, in cash, or in terms equivalent to cash for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller acting prudently, knowledgeably, and assuming neither is under undue duress.

(31) “Miscellaneous Development” means any development placed upon, over or across state land that is not already defined in these rules (e.g. mailboxes, monitoring wells, Helipads)

(32) "Non-Trust Land" is land managed by the Department other than Trust Land. Examples of Non-Trust Land include state-owned Swamp Land Act Land, and submerged and submersible land [(land below ordinary high water)] under navigable and tidally influenced waterways.

(33) “Outfall” is the point of a drain where it discharges to an area of land or body of water.

(34) “Owner” means a person or legal entity that has a property interest in a structure or land

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

(36) "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, or Indian Tribe.

(37) “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.

(38) “Real Estate Asset Management Plan” is the plan adopted by the State Land Board that provides the policy direction and management principles to guide both the short and long-term management by the Department of the Common School Fund’s real estate assets.

(39) “Real Market Value for Land” means the current market value of the property (not including improvements) assigned to the land within the tax lot, adjacent riparian tax lot, or comparable tax lot by the county tax assessor.

(40) “Right of Way” is the legal right, established by grant, to pass along a specific route through grounds or property belonging to another.

(41) "Right to Use Water" is a water right permit, water right certificate, or a proposed or final order approving a water right permit granted by the Oregon Water Resources Department, or court decree evidencing a water right, authorizing a person to take and use a specific quantity of water for a specific use or uses from a specific location under specific terms and conditions.

(42) “Roadway” means a road, driveway or any other development for the use of a vehicle.

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

(44) “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.

(45) “Structure or Facility Necessary for the Use of Water” means the pipelines and required stands, pumps, wiring, fish screens, and similar equipment necessary to convey water from the point of diversion to the place of use.

(46) "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.

(47) "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.

(48) "Trust Land" is land granted to the state upon its admission into the Union, or obtained by the state as the result of an exchange of Trust Land, or obtained in lieu of originally granted Trust Land, or purchased with trust funds, or obtained through foreclosure of loans using trust funds.

(49) "Use" means an activity on state-owned lands that requires an easement under these rules.

(50) “Utility” means water, waste water, gas, electric or communication service lines, fixtures and other related facilities.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0040 Easement Application Requirements

(1) Except as provided by OAR 141-122-0010(4) (Purpose and Applicability) and 141-122-0100 (Easements Issued on Common School Forest Land), any person wanting to use state-owned land for any of the purposes described in OAR 141-122-0010(2) and (3) must:

(a) Apply to the Department for the easement using a form provided by the Department; and

(b) Submit a non-refundable application fee as provided in OAR 141-122-0040(3) payable to the Department to cover the administrative costs of processing the application and issuing the authorization. When applying for an easement for a structure or facility necessary for the use of water as described in OAR 141-122-0105, a person may submit to the Department a copy of their application to the Department of Water Resources for a right to use water in lieu of using the Department’s easement application form.

(2) Unless otherwise exempt under the provisions of OAR 141-122-0010(4) (Purpose and Applicability), each individual use of, or development placed on state-owned land must be authorized by a separate easement specifically authorizing only that use or development.

(a) With regard to a conduit, regardless of the number of innerducts or fiber optic cables contained within the conduit, each cable or innerduct is considered an individual use subject to authorization by an easement.

(b) With regard to electric power transmission lines, one transmission line with one or more circuits will constitute an individual use subject to authorization by an easement. Additional parallel transmission lines owned by the same entity with one or more circuits may be included in the same individual use so long as such parallel lines are located within the designated boundaries of the easement.

(3) The application fee for all easements is as follows:

(a) Utility Easements $750

(b) All Other Trust Land Easements: $1,500.00

(c) Application fee for all structures or facilities necessary for the use of water on submerged land subject to an easement is $125.

(4) A single easement application form may be used to request:

(a) Multiple easements required for a single pipeline, cable, or similar use or development which cross one or more parcels of state-owned land

(b) An easement for all state, county or city-owned bridges within a single county, or

(c) An easement for one or more identical uses or developments which cross the same parcel of state-owned land or state-owned waterway, for example, two parallel pipelines.

(6) An easement application for a conduit must include a cross-sectional drawing that shows the proposed use and the remaining conduit space available for future use.

(7) A fully completed application must be submitted to the Department at least 90 calendar days prior to the proposed use or placement of a development subject to a term easement on state-owned land, unless otherwise allowed by the Director in writing

(8) A fully completed application must be submitted to the Department at least 120 calendar days prior to the proposed use or placement of a development that is eligible for a permanent easement on state-owned land, unless otherwise allowed by the Director in writing.

(9) Any person holding a valid easement (other than a permanent easement) granted by the Department prior to the adoption of these rules who wants to continue holding the authorized area following the expiration of the easement for a use subject to easement must:

(a) Apply to the Department for a new easement and pay the required application fee 180 calendar days prior to the expiration of the easement as provided in OAR 141-122-0040(1), unless otherwise allowed by the Director in writing; and

(b) Pay the compensatory payment required by OAR 141-122-0060 at such time that the Department has reviewed and approved the easement application request pursuant to OAR 141-122-0050(9) and (10).

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0050 Easement Application Review and Approval Process

(1) Department staff may require a meeting to discuss a proposed project and use before performing an application completion review. 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 an application meeting.

(2) Upon receipt of an application, and the completion of an application meeting if necessary, the Department will determine whether it is complete. Applications determined to be incomplete will be returned to the applicant with a written explanation of the reason(s) for rejection.

(3) If a rejected application is resubmitted within 120 calendar days from the date the Department returned it to the applicant, no additional application fee will be assessed.

(4) If determined by the Department to be complete, the application will be circulated to affected local, state, and federal agencies; Holders of valid authorizations granted by the Department in the requested area; and other interested parties including federally recognized tribal governments and ports for review and comment. As a part of this review, the Department will specifically request comments concerning:

(a) The presence, type and location of state or federal listed threatened and endangered species (including candidate species), and archeological and historic resources within the requested area which may be disturbed by the proposed use;

(b) Whether the proposed easement use:

(A) Conforms with other local, state, and federal law and rules;

(B) Conforms with the local comprehensive land use plan and zoning ordinances;

(D) Would unreasonably impact uses or developments proposed or already in place within the requested area.

(5) The Department may post a 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 or electronic copies of an application available to any person upon request.

(6) The Department may waive the circulation requirement described in OAR 141-122-0050(4) if:

(a) The use or development has been previously reviewed by the listed agencies and other interested persons, and the results are documented in the easement application;

(b) The application is for an easement associated with the right to use water and the Water Resources Department is conducting or has conducted a public interest review sufficient to make the determinations required by OAR 141-122-0050(4) or,

(c) The application is for an easement for an energy facility that has been granted a site certificate by the Energy Facility Siting Council under ORS 469.300 et seq. and OAR 345-022, et seq. (Regulation of Energy Facilities), in which case the Department will accept the findings and conclusions of the Energy Facility Siting Council in evaluating the easement application over Trust Land.

(7) An applicant for an easement may be required to amend their application at any time to address issues, concerns, or information needs identified by the Department or other commenters.

(8) After receipt of agency and public comment concerning the proposed use, the Department will determine, and advise the applicant in writing if:

(a) Changes to the requested easement area are necessary to respond to agency or public comment;

(b) Additional information is required from the applicant, including but not limited to a survey of:

(A) State or federal listed threatened and endangered species (including candidate species) within the requested area; or

(B) Archaeological and historic resources within the requested area.

(c) The request is denied. Applicants will be given the opportunity to revise their proposed project if the Department denies the request; or

(d) The easement will be granted with specific terms and conditions.

(9) If the Department decides to grant the easement, the written notification will also indicate:

(a) The amount of compensation pursuant to the requirements of OAR 141-122-0060 that the applicant must remit to the Department to obtain the authorization;

(b) Any surety bond or other guarantees of performance in an amount required by the Department pursuant to the provisions of OAR 141-122-0070(12); and

(10) The Department will not grant an easement to an applicant until it has received all fees and compensation specified in these rules, and evidence of a surety bond or other guarantees of performance (if required). However, the Department, at its discretion, may grant a provisional easement prior to receipt of compensation due for removal of timber, sand and gravel, or other natural resources in the easement area if the market value of those resources is based on actual receipts from their sale.

(11) The Director may refer unusual or controversial easement applications to the State Land Board for review and approval.

(12) If requested by the Department, an applicant must present evidence to the Department prior to placing the use or development that they have obtained:

(a) All authorizations required by local, state, and federal governing bodies to undertake the proposed use or development; and

(b) Any authorization that may be required to obtain access to, or to cross land belonging to a person other than the Department to undertake the use or development.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0060 Compensation

(1) Except as provided in OAR 141-122-0060(3), the Department will, prior to granting an easement, require an applicant to submit to the Department a compensatory payment for each individual crossing or use of state-owned land in the greatest of:

(a) 100 percent of the market value of the area requested for the easement if it is on, over or above state-owned upland for uses as defined in OAR 141-122-0010(2) and (3). Market value is either:

(A) Real market value as determined by the county tax assessor for DSL parcel impacted and the benefitting tax lot(s); or

(B) An appraised value that is acceptable to the Department and that has been prepared by a qualified state-certified appraiser.

(b) Minimum compensation fee as follows:

(A) Utilities: $3,500.00

(B) Roadways: $2,500.00

(2) If required by the Department, applicants must also submit to the Department a payment in an amount to be determined by the Department for the market value of any commercially valuable timber, sand and gravel, or other natural resources in the easement area which must be removed during or after placement of the proposed use, or which cannot be developed because of the easement use. Such payment shall be due at a date to be determined by the Department.

(3) The Department may, in lieu of a cash compensatory payment, negotiate a non-cash compensatory payment equivalent to or greater than the compensation required under OAR 141-122-0060(1).

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0070 General Easement Terms And Conditions

(1) Easements shall be offered by the Department for the minimum area and term determined by the Department to be required for the requested use or development. Unless otherwise authorized by the Director, the minimum width of an easement shall be no less than 15 feet.

(2) The applicant shall have ninety (90) calendar days from the date of offer to execute an easement with the Department. The Department may revoke the offer after ninety calendar days, at which time the applicant may re-apply for an easement in accordance with OAR 141-122-0040.

(3) The Department may grant additional easements which, as determined by the Department, do not substantially interfere with other authorized easements within a given area.

(4) Easements shall be offered for a term no longer than thirty (30) years unless otherwise authorized by the Director.

(5) The Department may, upon request of the applicant, grant permanent easements only for structures or facilities necessary for the use of water as provided in OAR 141-122-0105.

(6) Requests for permanent easements shall be taken to the State Land Board for review and approval.

(7) An easement granted by the Department will generally be to a specific person for a specific use, location, and term. The Holder of an easement must apply to and obtain prior written approval from the Department as provided in OAR 141-122-0040 prior to:

(a) Changing the authorized use;

(b) Transfer of ownership;

(d) Changing the authorized area; or

(e) Permitting other persons to utilize the authorized area for uses and developments requiring separate authorization by the Department (for example, attachment of cables, conduits, or pipes under a bridge already authorized by an easement).

(8) State-owned land authorized for a specific use by an easement will remain open to the public for recreational and other non-proprietary uses unless restricted or closed to public entry by the State Land Board or the Department. An easement Holder may request the Department to partially restrict or close an easement area to partial or total public use if it can be demonstrated to the Department that:

(a) Public entry on the area encumbered by the easement could cause damage to the use of, or development placed on the authorized area; or

(b) The use of the authorized area could cause harm to the public.

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

(10) Routine right of way maintenance including, but not limited to vegetation trimming and the application of state-approved herbicides will be allowed as specified by the easement conditions. However, except as expressly authorized in writing by the Department, an easement Holder will not otherwise remove any sand, gravel, or other mineral or natural resources within the authorized area for commercial use or sale.

(11) The Holder of an easement must conduct all operations within the authorized area in a manner that conserves fish and wildlife habitat; protects water quality; and does not contribute to soil erosion, or the introduction or spread of noxious weeds or pests. Upon completion of construction, disturbed lands shall be reclaimed as specified by the Department.

(12) The Holder of an easement must maintain all buildings, pipelines, cables, and other developments or items placed in or on state-owned land in a good state of repair.

(13) Applicants for an easement may be required to obtain:

(a) Insurance, bond or other guarantees of performance required by the Department in the exercise of its reasonable discretion if, in the opinion of the Department, the use constitutes a risk to other users of the area, to public safety, or to the State of Oregon, or if required by Oregon state law. The Department may:

(A) Request that the applicant for, or the Holder of an easement provide information concerning the use or development to the Risk Management Division of the Oregon Department of Administrative Services, which may assist the Department in determining the appropriate amount of insurance coverage based on the nature of the use, and

(B) Require that the State of Oregon be named as an additional insured party in any such policy.

(b) A surety bond in an amount to be determined by the Department to ensure that the easement Holder will perform in accordance with all terms and conditions of the authorization; or a cash deposit in an amount equal to the amount required for a surety bond.

(14) Easement Holders must inspect the condition of the easement area and the developments placed on it on a frequency to be determined by the Department in consultation with the easement Holder and other interested parties.

(15) Unless otherwise agreed to in writing in the easement, the Holder of an easement which does not have a permanent term must terminate all use, and remove any or all developments or uses placed within the easement area upon expiration or cancellation of the easement. If the Holder of the easement refuses to terminate their use or remove their developments, the Department may remove them and charge the Holder for doing so.

(16) The Holder of an easement must indemnify the State of Oregon and the Department against any claim or costs arising from or related to a release of a hazardous substance on or from the authorized area resulting from the actions or negligence of the easement Holder.

(17) A term easement exempt from any fees may be subject to the future imposition by the Department of a consideration payment, and/or usage

fee to be established by the State Land Board as authorized by law.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0080 Assignment of Easements

(1) An easement in good standing is transferable. Prior written consent of the Department is required prior to any transfer of the easement. No transfer may increase the burden on the estate or detract from the value of the underlying state land.

(2) The Holder of an easement wanting to transfer their easement must submit to the Department:

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

(b) Non-refundable transfer processing fee of $1,000.00 payable to the Department.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0090 Termination of an Easement

(1) The Department may terminate any easement:

(a) If there is no use of, or development placed on the easement area for five consecutive years;

(b) If the easement is for a structure or facility necessary for the use of water on state-owned land and the associated right to use water is cancelled by the Oregon Water Resources Department or abandoned by the easement Holder. Upon such termination, the Department will notify the easement Holder in writing using the last known address reported by the easement Holder to the Department. This notification will state that the easement has terminated, and that the easement Holder will have 30 calendar days from the date of the notice to respond in writing to the Director why the easement should be reinstated. The Director will notify the easement Holder in writing of his/her decision within 60 calendar days of receipt of the request for reinstatement of the easement; or

(c) If the Holder of the easement fails to comply with these rules or the terms and conditions of the easement, or violates other laws covering the use of their authorized area, the Department will notify the Holder of the easement in writing of the default and demand correction within a specified time frame. If the Holder of an easement fails to correct the default within the time frame specified, the Department may:

(A) Modify or terminate the easement; or

(B) Invoke other remedies as provided in OAR 141-122-0130.

(2) Notwithstanding the provision of OAR 141-122-0090(1), the Department will not terminate a term easement if the Holder of the easement is ready, but unable

to commence the requested use within the five-year period due to their inability to obtain other required authorizations within the five-year period.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0100 Easements Issued on Common School Forest Land

(1) The Oregon State Forester may issue an easement not to exceed a term of ten years [temporary easements] on certified Common School Forest Land in accordance with applicable statutes and administrative rules.

(2) Such easements may be issued by the Oregon State Forester for uses such as, but not limited to:

(a) Use of roads for forest management purposes;

(b) Constructing, improving and/or maintaining temporary roads, including spur roads;

(d) Use of stumps and/or trees for guide lines and tail holds;

(e) Extracting sand, gravel, or quarry rock for the improvement, construction or maintenance of state-owned roads; and

(f) Use of existing roads for forest management purposes.

(3) Any person wanting to obtain an easement on certified Common School Forest Land must apply directly to the Oregon Department of Forestry.

(4) Any person wanting to obtain an easement on Common School Forest Land for the uses or developments described in OAR 141-122-0010(2) and (3), must apply to the Department pursuant to these rules.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0105 Easements For Structures and Facilities Necessary for the Use of Water

(1) An easement is required for all structures and facilities placed on Trust Land managed by the Department that are necessary for the use of water.

(2) An application received by the Department for an easement for a structure or facility necessary for the use of water will be processed pursuant to the provisions of OAR 141-122-0050 and 141-122-0060 (as applicable) of these rules.

(3) The Department will allow a person to include up to three water pipelines and associated fixtures per lot of record on their application for an easement.

(4) An easement issued by the Department under this section will have the same term as that of the associated right to use the water as determined by the Oregon Water Resources Department. Land Board approval will not be required for an easement granted under this section.

(5) The Department may enter into an agreement with the Oregon Water Resources Department to consolidate the processing of easements for structures or facilities necessary for the use of water with the processing of a right to use water.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03

Or. Admin. R. 141-122-0110 Unauthorized Uses and Penalties

(1) Uses and developments not authorized by an easement issued by the Department, or by another agency as a valid existing right of record on land acquired by the Department, constitute a trespass and must be removed as directed unless otherwise authorized in writing by the Department.

(2) In addition to any other penalties provided or permitted by law, the use or placement of any development on state-owned land without the required Department authorization as described in these rules, or which is otherwise not in compliance with these rules, will constitute a trespass and be prosecuted pursuant to governing law.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0120 Reconsideration of Decision

An applicant or any person adversely affected by the issuance or denial of an easement by the Department may request the Director or the State Land Board, depending on which entity made the decision, to reconsider the decision. A request for reconsideration must be filed in compliance with ORS 183.482 or 183.484.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08
DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03
DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00

Or. Admin. R. 141-122-0130 Enforcement Actions; Civil Penalties and Other Remedies

(1) The Department may:

(a) Conduct field inspections to determine if uses of, and developments on, Trust Lands are authorized by, or conform with the terms and conditions of an easement and, if not,

(b) Pursue whatever remedies are available under law to ensure that any use that is in violation of the terms or conditions of an easement is either brought into compliance with the requirements of these rules or other applicable law, or removed.

(2) In addition to any other penalty or sanction provided by law, for uses subject to an easement located on Trust Lands, the Director may assess a civil penalty of not more than $1,000 per day of violation for the following:

(a) Violations of any provision of OAR 141-122 or ORS 273 or 274; or

(b) Violations of any term or condition of a written authorization granted by the Department under ORS 273 and 274.

(3) The Director will give written notice of a civil penalty incurred under OAR 141-122-0130(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;

(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 141-122-0130(3). Such 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) In imposing a penalty under OAR 141-122-0130 of these rules, the Director will consider the following factors as specified in ORS 274.994:

(a) The history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation;

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

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

(6) Pursuant to ORS 183.090(2), a civil penalty imposed under OAR 141-122-0130 will become due and payable 10 calendar days after the order imposing the civil penalty becomes final by operation of law or on appeal.

(7) If a civil penalty is not paid as required by OAR 141-122-0130, interest will accrue at the maximum rate allowed by law from the date first due.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019
DSL 4-2008, f. & cert. ef. 10-15-08

Division 123 RULES FOR GRANTING EASEMENTS ON NON-TRUST LANDS

Or. Admin. R. 141-123-0010 Purpose and Applicability

(1) These rules:

(a) Govern the granting and renewal of easements on state-owned Non-Trust land as specified herein.

(b) Do not apply to the:

(A) Granting of easements for State-Owned Trust lands under OAR 141-122 (Rules for Granting Easements on Trust Land)

(B) Granting of easements for fiber optic and other cables on state-owned submerged and submersible land within the Territorial Sea, an activity governed by OAR 141-083 (Rules for Granting Easements for Fiber Optic and Other Cables on State-Owned Submerged and Submersible Land Within the Territorial Sea);

(C) Granting of authorizations for hydroelectric projects on state-owned Non-Trust Land, an activity governed by OAR 141-087 (Hydroelectric Projects);

(D) Granting of authorizations for remediation and habitat restoration activities governed by OAR 141-145 (Rules Governing the Management of State-Owned Submerged and Submersible Land Subject to Remediation and Habitat Restoration Activities);

(E) Granting of authorizations for leases, licenses and registrations for structures on and uses of state-owned submerged and/or submersible lands governed by OAR 141-082 (Rules Governing the Management Of, And Issuing of Leases, Licenses and Registrations for Structures On, And Uses of State-Owned Submerged and Submersible Land).

(F) Dedication of roads or rights-of-way required of the Department or its agents by local government resulting from a local land use approval involving state-owned land; or

(G) Existing valid easements or right of ways granted, by the Department of State

Lands (Department) or State Land Board, prior to the adoption of these rules.

(c) Require prior authorization for all uses described under OAR 141-123-0010(2) and (3) unless otherwise exempt from easement under the provisions of OAR 141-123-0010(4) of these rules.

(d) Contain specific provisions relating to the granting of easements by the Department to persons who have or will place a structure or facility on state-owned Non-Trust Land necessary to take water for which they have a right to use.

(2) Unless otherwise exempt under the provisions of OAR 141-123-0010(4) of these rules, developments and uses of state-owned Non-Trust Land subject to easement include, but are not limited to the following:

(a) Water, gas, electric and communication service lines (including fiber optic cables) and associated equipment such as pumping stations, transformers and meters;

(b) Innerducts and conduits for cables (regardless of whether they contain a cable or are in use);

(d) Drainage and irrigation works;

(e) Sewer, storm, and cooling water lines, including storm water outfalls and other outfalls;

(f) Bridges, skylines, and logging lines;

(g) Railroad and light rail track, bridges, stations, depots, and other related facilities;

(h) Roads and trails of all types;

(i) Overhead transportation lines (for example, tramways, etc.);

(j) Storage of materials (for example, sand, gravel, dredge spoils, etc.); and

(k) Other encroachments

(l) Erosion control structures, dikes, levees, and tide-gates.

(3) The Department Director may determine that other uses and developments similar to those specified in OAR 141-123-0010(2) are also subject to authorization by, or exempted from, an easement and these rules.

(4) An easement is not required:

(a) For uses or developments on state-owned Non-Trust Land that would require an easement under these rules if the person undertaking the use or owning the development has obtained a valid authorization from the Department pursuant to the provisions of OAR 141-082 (Leasing And Registration Of Structures On, And Uses Of State-Owned Submerged And Submersible Lands); OAR141-145 (Authorizations For Remediation And Habitat Restoration Activities); or OAR 141-125 (Authorizing Special Uses On State-Owned Land), provided the proposed use or development is located on the land which is subject of the authorization, is incidental to the specific use that is the subject of the authorization, and does not result in an additional burden on the land; or

(b) For any structure or facility necessary for the use of water crossing or situated on state-owned submersible land if the below conditions apply:

(A) The withdrawal is authorized by a valid right to use the water; and

(B) The water is used exclusively for irrigation or domestic use.

(c) For water, gas, electric and communication lines physically attached to and supported by county or state-owned bridges that cross state-owned waterways which are located outside of city limits. If the water, gas, electric and communication lines are located within a city, or cross a state-owned waterway within a city, they are subject to easement unless otherwise exempt by these rules.

(5) A person who is exempt from obtaining an easement under the provisions of OAR 141-123-0010(4) may apply to obtain an easement and the Department may authorize an easement even though none is required under these rules. The application shall be processed in accordance with OAR 141-123-0050.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, adopt filed 01/08/2019, effective 01/08/2019

Or. Admin. R. 141-123-0020 General Provisions

(2) The Department shall follow the guiding principles and resource-specific management prescriptions contained in the Real Estate Asset Management Plan, and consider the comments received from federal, state, and local governments and interested persons when determining whether to authorize or condition an easement on state-owned land.

(3) 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.

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

(5) State-owned submerged and submersible land is managed to ensure the collective rights of the public 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”.

(6) All uses of state-owned land must conform to applicable local (including local comprehensive land use planning and zoning ordinance requirements), state and federal laws.

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

(8) The Department shall not grant an easement if:

(a) As a result of its circulation for public comment of the application for easement as described in OAR 141-123-0050(4) it determines that the proposed use or development would unreasonably impact use or developments proposed or already in place within the requested area; or

(b) If the proposed use or development is inconsistent with local, state, or federal laws; or

(f) If the proposed use or development is inconsistent with any endangered species management plan adopted by the Department under the Oregon Endangered Species Act (ORS 496.171 to 496.192).

(9) The Department may, at its discretion, deny an easement if the applicant’s financial status or past business practices, or both, indicate that the applicant may not:

(a) Be able to fully meet the terms and conditions of an easement offered by the Department; or

(b) Use the land applied for in a way that meets the provisions of OAR 141-123-0020.

(10) The Department may, at its discretion, deny an easement if the applicant is out of compliance with the terms and conditions of any previous authorization issued, or is subject to any enforcement or corrective action, by the Department.

(11) The Department shall:

(a) Recognize all valid easements of record on land acquired by the Department as disclosed at the time of acquisition; and

(b) Honor any renewal provisions contained in existing valid easements granted by the Department if the Holder of the easement has complied with all terms and conditions of the easement and applies to the Department for a new easement as prescribed in these rules.

(12) Except as provided in OAR 141-123-0010(4) and OAR 141-123-0100(2), any person wanting to use or place a development on state-owned land subject to an easement must obtain a written authorization in the form of an easement from the Department prior to beginning the use or placing the development. Additionally, an easement is required for any use or development that encroaches on state-owned land regardless of its height above or below, or manner of crossing the state-owned land.

(13) Unless otherwise exempt by these rules, each individual use of, or development placed on, state-owned land constitutes a separate discrete activity subject to:

(a) An easement specifically authorizing only that individual use or development; and

(b) Payment of compensation as required in these rules.

(14) An easement cannot be established on Department-managed land by adverse possession regardless of the length of time the use or development has been in existence.

(15) The Department may:

(a) Conduct field inspections to determine if the uses and developments in place on state-owned land are authorized by, or conform with, the terms and conditions of an easement and, if not;

(b) Pursue whatever remedies are available under law and OAR 141-123-0120 to ensure that unauthorized uses subject to an easement on state-owned land are either brought into compliance with the requirements of these rules or removed.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, adopt filed 01/08/2019, effective 01/08/2019

Or. Admin. R. 141-123-0030 Definitions

(1) “Applicant” is any person applying for an easement.

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

(4) "Cable" means a conductor of electricity or light with insulation, or a combination of conductors insulated from one another within a single jacket or sheath.

(6) "City" means a city incorporated under ORS 221.020 through 221.100.

(7) "City Limits" refers to the boundaries of a city incorporated under ORS 221.020 through 221.100.

(8) "Communication Line" is any cable including fiber optic cable which transmits electronic information, telephone or television signals or other data.

(9) "Comparative Compensatory Payment" is the amount of money paid to owners of parcels that are similar to the state-owned land requested by an applicant for a use that is the same as, or similar to that requested by an applicant. When the applicant’s requested use is in, on or over Trust Land, the comparative compensatory payment is the maximum amount of money private landowners receive for the same or similar uses in, on or over parcels that they own that are similar to the Trust Land requested by the applicant.

(10) "Compensation” or “Compensatory Payment" is the amount of money paid or something of equal value provided for an easement to the Department for the use of Department managed land.

(11)"Conduit" is a pipe that protects cables from damage. It may be buried or used in above-ground applications such as bridge crossings. Innerducts may be installed within a conduit to facilitate individual cable installation.

(12) “Deflector” is a structural barrier such as a groin or jetty projecting into a waterway to divert flow away from and prevent eroding sections of the banks of a waterway.

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

(14) "Development" is any structure or physical facility (for example, each cable, innerduct, innerduct and cable, conduit, conduit and cable, pipeline, electrical line, communication line, bridge, road, fence, ditch, reservoir, or easement-associated building) on state-owned land subject to or authorized by an easement granted by the Department.

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

(16) “Domestic Use” means the use of water for human consumption and household purposes that is necessary for the sustenance of an individual, family unit or household. Domestic use may also include water used by an individual family unit or household for heating or cooling purposes.

(17) "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.

(18) “Easement for Conservation Purposes” is a type of easement granted by the Department that limits uses to protect the property for conservation values, such as fish and wildlife habitat or other ecosystem processes. The easement for conservation purposes is conveyed by the Department when the applicant is not eligible to hold a Conservation Easement or otherwise does not conform to ORS 271.715 to 271.775.

(19) "Encroachment" is an unauthorized development or use, such as, but not limited to a structure, fill, or pile of aggregate, that overlaps on, or otherwise occupies or restricts the full use of state-owned land. An encroachment may be a pipe, conduit, or other structure that has been abandoned in place. An encroachment may also occur when the Holder of an easement granted by the Department extends their use outside of the area authorized by that easement or adds a use or development not authorized.

(20) “Erosion Control Structures” mean revetments, attenuators, deflectors, retaining walls, riprap and other structures placed adjacent to, or on Non-Trust Land.

(21) "Fiber Optic Cable" means an insulated and often armored cable used to transmit telecommunications through glass fibers using pulses of light.

(22) “Gas Lines and Associated Fixtures” are the pipelines and required compressor and gate stations, valves, meters, regulators, relief stacks, marker posts, rectifiers, and all other related fixtures and equipment necessary to deliver natural gas from the point of origin to the user.

(23) "Governmental Body" means an agency of the Federal Government, the State of Oregon, and every political subdivision thereof as defined in ORS 271.005.

(24) “Holder” means any person who holds a current authorization from the Department for the use of state-owned lands.

(25) "Individual Use" or "Individual Development" is each separate use of, or development placed on state-owned land.

(26) "Innerduct" is tubing that not only protects fiber optic and other types of cables, but also facilitates their installation. It is often placed inside a conduit or may be buried directly into the ground.

(27) “Intake” is a location or structure through which something is taken in, e.g. water in a channel or pipe from a body of water.

(28) “Irrigation” or “Irrigation Use” means the artificial application of water to crops or plants by controlled means to promote growth or to nourish crops or plants. Examples of irrigation uses include, but are not limited to, watering of an agricultural crop, commercial garden, tree farm, orchard, park, golf course play field or vineyard.

(29) “Market Value" Means the most probable price, as of a specified date, in cash, or in terms equivalent to cash for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller acting prudently, knowledgeably, and assuming neither is under undue duress.

(30) “Maximum Value Per Square Foot” means the highest price per square foot that the Department may use in determining compensation for easements.

(31) “Multiple-Use Easement” means an authorization issued for a single conduit, through which additional uses may be embedded.

(33) “Outfall” is the point of a drain where it discharges to an area of land or body of water.

(34) “Owner” means a person or legal entity that has a property interest in a structure or land

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

(37) “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.

(38) ““Real Estate Asset Management Plan” is the plan adopted by the State Land Board that provides the policy direction and management principles to guide both the short and long-term management by the Department of the Common School Fund’s real estate assets.

(39) “Real Market Value” for land means the current market value of the property (not including improvements) assigned to the land within the tax lot, adjacent riparian tax lot, or comparable tax lot by the county tax assessor.

(40) “Right of Way” is the legal right, established by grant, to pass along a specific route through grounds or property belonging to another.

(42) “Roadway” means a road, driveway, or any other development for the use vehicles or other traffic.

(43) “Rip-Rap” means crushed rock or concrete placed on the bank of a waterway or lake to prevent or reduce erosion of the bank.

(44) “Single-Use Easement” means an authorization for a crossing with an individual use.

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

(46) “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.

(47) “Structure or Facility Necessary for the Use of Water” means the pipelines and required stands, pumps, wiring, fish screens, and similar equipment necessary to convey water from the point of diversion to the place of use.

(48) "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.

(49) "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.

(50) "Trust Land" is land granted to the state upon its admission into the Union or obtained by the state as the result of an exchange of Trust Land, or obtained in lieu of originally granted Trust Land, or purchased with trust funds, or obtained through foreclosure of loans using trust funds.

(51) "Use" means an activity on state-owned lands that requires an easement under these rules.

(52) “Utility” means water, waste water, gas, electric, or communication service lines, fixtures and other related facilities.

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, adopt filed 01/08/2019, effective 01/08/2019

Or. Admin. R. 141-123-0040 Easement Application Requirements

(1) Except as provided by OAR 141-123-0010(4) (Purpose and Applicability) and 141-123-0100 (Easements for Structures and Facilities Necessary for the Use of Water) , any person wanting to use state-owned land for any of the purposes described in OAR 141-123-0010(2) and (3) must:

(a) Apply to the Department for the easement using a form provided by the Department; and

(b) Submit a non-refundable application fee as provided in OAR 141-123-0040(3) payable to the Department to cover the administrative costs of processing the application and issuing the authorization. When applying for an easement for a structure or facility necessary for the use of water as described in OAR 141-123-0100, a person may submit to the Department a copy of their application to the Department of Water Resources for a right to use water in lieu of using the Department’s easement application form.

(2) Unless otherwise exempt under the provisions of OAR 141-123-0010(4) (Purpose and Applicability), each individual use of, or development placed on state-owned land must be authorized by a separate easement specifically authorizing only that use or development.

(3) Except as provided by OAR 141-123-0100 (Easements for Structures and Facilities Necessary for the Use of Water) and OAR 141-123-0040(4), the application fee for all term easements is $750; the application fee for all structures or facilities necessary for the use of water on submerged land subject to an easement is $125.

(4) There is no application fee for water, gas, electric or communication service

lines across non-trust lands outside of city limits.

(5) A single easement application form may be used to request:

(a) An easement for a single pipeline, cable, or similar use or development which crosses one or more parcels of state-owned land.

(b) An easement for all state, county or city-owned bridges within a single county, or

(c) An easement for one or more identical uses or developments which cross the same parcel of state-owned land or state-owned waterway, for example, two parallel pipelines.

(6) An easement application for a conduit must include a cross-sectional drawing that shows the proposed use and the remaining conduit space available for future use.

(7) A fully completed application must be submitted to the Department at least 90 calendar days prior to the proposed use or placement of a development subject to a term easement on state-owned land unless otherwise allowed by the Director in writing,

(a) Apply to the Department for a new easement and pay the required application fee 180 calendar days prior to the expiration of the easement as provided in OAR 141-123-0040(1), unless otherwise allowed by the Director in writing; and

(b) Pay the compensatory payment required by OAR 141-123-0060 at such time that the Department has reviewed and approved the easement application request pursuant to OAR 141-123-0050 (9) and (10).

History

Statutory/Other Authority: ORS 273.045
Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010
DSL 1-2019, adopt filed 01/08/2019, effective 01/08/2019

Or. Admin. R. 141-123-0050 Easement Application Review and Approval Process

(3) If a rejected application is resubmitted within 120 calendar days from the date the Department returned it to the applicant, no additional application fee will be assessed.

(4) If determined by the Department to be complete, the application will be circulated to affected local, state, and federal agencies; Holders of valid authorizations granted by the Department in the requested area; and other interested persons including federally recognized tribal governments and ports for review and comment. As a part of this review, the Department will specifically request comments concerning:

(b) Whether the proposed easement use:

(A) Conforms with other local, state, and federal law and rules;

(B) Conforms with the local comprehensive land use plan and zoning ordinances;

(D) Would unreasonably impact uses or developments proposed or already in place within the requested area.

(5) The Department may post a 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.

(6) The Department may waive the circulation requirement described in OAR 141-123-0050(4) if:

(a) The use or development has been previously reviewed by the listed agencies and other interested persons, and the results are documented in the easement application;

(7) An applicant for an easement may be required to amend their application at any time to address issues, concerns, or information needs identified by the Department or others that provided comments.