Bill Text: OR SB600 | 2011 | Regular Session | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to the Department of State Lands.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Passed) 2011-08-03 - Effective date, January 1, 2012. [SB600 Detail]

Download: Oregon-2011-SB600-Engrossed.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1873

                           B-Engrossed

                         Senate Bill 600
                   Ordered by the House June 6
 Including Senate Amendments dated April 25 and House Amendments
                          dated June 6

Sponsored by Senator JOHNSON

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

  Modifies provisions related to lease of submersible lands.
Modifies provisions related to easements over submersible lands.
Modifies provisions related to certain privately owned floats and
docks. Allows Department of State Lands to authorize, without
charge, certain uses of submerged and submersible lands. Modifies
provisions related to kelp fields.  { + Allows Department of
State Lands to adopt rule that exempts from removal-fill
requirements removal of no more than 100 cubic yards of material
from waters of state for purpose of maintaining drainage and
protecting agricultural land. + }

                        A BILL FOR AN ACT
Relating to the Department of State Lands; creating new
  provisions; and amending ORS 196.905, 274.040, 274.043,
  274.060, 274.885 and 274.895.
Be It Enacted by the People of the State of Oregon:

                               { +
LEASES AND EASEMENTS + }

  SECTION 1. ORS 274.040 is amended to read:
  274.040. (1) Except as provided in ORS 274.043   { - (1) to
(3) - } , in ORS 274.085 for leases of submersible lands acquired
as an investment for the Common School Fund, in ORS 274.530 (1)
for leases of submersible lands of less than one year's duration,
in ORS 274.530 (3) for licenses of less than three years'
duration and in subsections (2) and (3) of this section,
submersible lands owned by the State of Oregon may be leased only
to the highest bidder, bidding at least the minimum amount
designated by the Department of State Lands under subsection (6)
of this section for the lease of any such lands, after being
advertised not less than once each week for two successive weeks
in one or more newspapers of general circulation in the county in
which the lands are situated. However, any owner of lands
abutting or fronting on such submersible lands shall have the
preference right to lease the lands unless the submersible lands
are occupied by a person claiming the right of occupancy under a
conveyance recorded before January 1, 1981, from the present
owner or predecessor in interest of lands abutting or fronting
the submersible lands. If so, the occupant of the submersible
lands shall have the preference right to lease the lands. An
easement or license related to utility service on the submersible
lands does not establish a preference right under this
subsection. The lands shall be leased for the amount designated
by the department under subsection (6) of this section as the
minimum amount for the lease of any such lands. The
  { - preference - }   { + preferences + } provided in this
subsection   { - applies - }  { + apply + } to any lease of
submersible land for one year or more offered or issued under ORS
274.530. The   { - preference - }   { + preferences + } provided
in this subsection   { - does - }   { + do + } not apply to any
lease offered or issued by the department under ORS 274.705 to
274.860.   { +  The preference for the owner of lands provided in
this subsection 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. + }
  (2) Submersible lands owned by the State of Oregon that are
determined by the State Land Board to be available for sale may
be sold only to the highest bidder, after being advertised not
less than once each week for two successive weeks in one or more
newspapers of general circulation in the county in which the
lands are situated. However:
  (a) No such lands shall be sold for less than for a fair
appraised value as determined by an appraiser appointed by the
department.
  (b) All sales of such submersible lands shall be approved by
the State Land Board.
  (c) Any owner of lands abutting or fronting on such submersible
lands shall have the preference right to purchase such lands for
the fair appraised value provided that the sale of such lands be
approved by the State Land Board.
  (3)(a) The department may grant, to any person holding a permit
from the Water Resources Director authorizing the impoundment for
beneficial use of the waters of any lake or stream, easements
over  { + submerged and + } submersible lands for flowage and
storage of waters, and for the construction, maintenance and
operation of any structures or facilities necessary for the use
of the water under the terms of the permit upon payment of just
compensation by the grantee.
  (b) In addition to the authority of the department under
paragraph (a) of this subsection to grant easements over
 { + submerged and + } submersible lands, a person holding a
water right permit, water right certificate, proposed or final
order approving a water right permit or court decree evidencing a
water right may occupy state-owned  { + submerged and + }
submersible lands for the construction, maintenance and operation
of any structure or facility necessary for the use of water if
the proposed use under the permit, certificate, order or decree
is for irrigation or domestic use.  The department may not charge
for the occupation of state-owned  { +  submerged and + }
submersible lands pursuant to this paragraph, nor may the
department require that a person obtain written documentation to
substantiate the permission granted under this paragraph. Upon
request by the Department of State Lands, the Water Resources
Department shall provide information to the Department of State
Lands regarding any change of use of the water right. A person
may continue to occupy state-owned  { + submerged and + }
submersible lands pursuant to this paragraph until:
  (A) The water right permit is canceled pursuant to ORS 537.260;
  (B) The water right is canceled pursuant to ORS 540.641; or
  (C) The water is no longer being applied to irrigation or
domestic use.

  (c) An easement or the permission granted under this subsection
may not be construed to be a sale or lease of the  { +  submerged
and + } submersible lands within the meaning of subsections (1)
and (2) of this section.
  (d) A person granted an easement or permission to use or occupy
state-owned  { + submerged and + } submersible lands under this
subsection shall indemnify and hold harmless the state from all
liability and claims arising from or attributable to the use or
occupation.
  (4) All easements or the permission granted pursuant to
subsection (3) of this section shall be subject to conditions
that will ensure the safety of the public and the preservation of
economic, scenic and recreational values and to lawful rules
promulgated by state agencies affected by the activities of the
grantee.
  (5) Nothing in this section affects the provisions of ORS
509.505, 509.510, 511.606 to 511.806, 622.270 or 622.320 to
622.350.
  (6) The Department of State Lands shall designate the minimum
acceptable amount for the lease of any  { + submerged and + }
submersible lands otherwise authorized by law, other than any
lease offered or issued by the department under ORS 274.705 to
274.860.
  (7) For the purpose of sale, the value of state-owned  { +
submerged and + } submersible lands shall be determined by an
appraiser appointed by the department.
  (8) The act of any person entering into an agreement with the
department under this section or ORS 274.530 for the lease of
 { +  submerged and + } submersible lands shall not be considered
a waiver by such person of any claim of ownership in the
 { + submerged and + } submersible lands described in the
agreement.
  SECTION 2. ORS 274.043 is amended to read:
  274.043. (1) A privately owned float or dock occupying an area
of 200 square feet or less is exempt from the leasing
requirements of ORS 274.040 if:
  (a) The structure belongs to the immediately adjacent riparian
landowner; and
  (b) The float or dock is uncovered, unenclosed and open on all
sides.
  (2) A privately owned float or dock constructed prior to
September 29, 1991, and exempted under ORS 274.042 (1989 Edition)
is exempt from the provisions of ORS 274.040.
    { - (3) The Department of State Lands may, by rule, provide
for additional exemptions to the leasing requirements of ORS
274.040. - }
    { - (4) Any float or dock described in subsections (1) to (3)
of this section shall be registered with the department. - }
   { +  (3) Any float or dock described in subsections (1) and
(2) of this section shall be registered with the Department of
State Lands.
  (4) The department may authorize the following uses of
state-owned submerged and submersible lands without charge:
  (a) Structures on state-owned submerged and submersible lands
maintained by a drainage district organized under the provisions
of ORS chapter 547.
  (b) Riprap, as defined in ORS 196.815, used to stabilize the
banks along state-owned submerged and submersible lands.
  (c) Rights of way established prior to November 1, 1981, for
any county road over state-owned submerged and submersible lands,
and rights of way established prior to November 1, 1981, for any
city street over state-owned submerged and submersible lands.
  (d) Voluntary habitat restoration work on state-owned submerged
and submersible lands. For purposes of this paragraph, voluntary
habitat restoration work does not include:

  (A) Activities undertaken to satisfy any actual or potential
legal obligation, or for which the entity completing the habitat
restoration work receives compensation of any kind.
  (B) Habitat restoration 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.
  (5) The department is entitled to charge, in accordance with
rules adopted by the department, for the use of state-owned
submerged and submersible lands for any environmental mitigation
credit, or settlement of or credit obtained as an offset against
natural resource damages liability, acquired by any party for
habitat restoration work on state-owned land.
  (6) The uses described in subsections (4) and (5) of this
section must be registered in accordance with rules adopted by
the department. Any person issued a registration to use or occupy
state-owned submerged and submersible lands under subsections (4)
and (5) of this section shall indemnify and hold harmless the
state from all liability and claims arising from or attributable
to the use or occupation.
  (7) The department by rule may authorize the use of specific
state-owned submerged or submersible lands without charge if the
department determines that the use is minimally intrusive to any
public rights of navigation, fishery or recreation. + }

                               { +
CONFORMING AMENDMENTS + }

  SECTION 3. ORS 274.060 is amended to read:
  274.060. (1) Nothing in ORS 274.040 prevents the Legislative
Assembly from providing for regulation of the building of wharves
or other improvements in any bay, harbor or inlet of this state,
subject to ORS 780.060, or grants the exclusive right to any
person to use the natural oyster beds of this state.
  (2) The grantee of any  { + submerged or + } submersible lands
under ORS 274.040 shall hold the same subject to the easement of
the public, under the provisions and restrictions of law, to
enter thereon and remove oysters and other shell fish therefrom.

                               { +
KELP FIELDS + }

  SECTION 4. ORS 274.885 is amended to read:
  274.885.   { - (1) - }  The Department of State Lands may lease
submerged lands owned by the State of Oregon for the purpose of
harvesting kelp and other seaweed after consultation with the
State Fish and Wildlife Commission.
    { - (2) The lease may be for a term of not to exceed 50 years
and shall provide for the payment to the State of Oregon of a sum
to be fixed by the department for all kelp or other seaweed
harvested under the lease, to be paid at the end of each year.
Not more than 40 miles of coast line shall be leased to one
person. - }
  SECTION 5. ORS 274.895 is amended to read:
  274.895. Except in the case of a person harvesting or removing
less than 2,000 pounds of  { + wet + } kelp each year for the
purposes of human consumption  { + for the person's personal
use + },   { - no person shall - }   { + a person may not + }
harvest or remove any kelp or other seaweed from any submerged
lands owned by the State of Oregon unless the person has first
obtained a lease from the Department of State Lands.

                               { +
DRAINAGE MAINTENANCE + }

  SECTION 6. ORS 196.905 is amended to read:
  196.905. (1) Nothing in ORS 196.600 to 196.905 applies to
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 shall be issued
under ORS chapter 537 or 539 and for which preliminary permits or
licenses have been or shall be issued under ORS 543.010 to
543.610.
  (2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
  (a) Such waterway or portion is situated within forestland; and
  (b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
  (3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and
ranching activities such as plowing, grazing, seeding, planting,
cultivating, conventional crop rotation or harvesting.
  (4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on lands zoned for exclusive farm use as
described in ORS 215.203 for the following activities:
  (a) Drainage or maintenance of farm or stock ponds; or
  (b) Maintenance of farm roads in such a manner as to not
significantly adversely affect wetlands or any other waters of
this state.
  (5) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for subsurface drainage by deep ripping, tiling
or moling on converted wetlands that are zoned for exclusive farm
use pursuant to ORS 215.203.
  (6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands 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 of the United States Department of
Agriculture, or its successor agency,   { - so - }   { + as + }
long as commercial agricultural production on the land has not
been abandoned for five or more years.
  (7) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16 U.S.C.
3831 as in effect on January 1, 2010.
  (8) The exemptions in subsections (3) to (7) of this section do
not apply to any fill or removal that involves changing an area
of wetlands to a nonfarm use.
  (9) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the maintenance or reconstruction of
structures such as dikes, dams, levees, groins, riprap,
tidegates, drainage ditches, irrigation ditches and tile drain
systems, provided that:
  (a) The structure was serviceable within the past five years;
and
  (b) Such 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.
  (10) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for maintenance, including emergency
reconstruction of recently damaged parts, of currently
serviceable roads or transportation structures such as groins and
riprap protecting roads, causeways and bridge abutments or
approaches.
  (11) The Department of State Lands may adopt a rule that
exempts from the requirement to obtain a permit under ORS 196.800
to 196.900 voluntary habitat restoration projects that have only
minimal adverse impact on waters of this state.
   { +  (12) The Department of State Lands may adopt a rule that
exempts from the requirement to obtain a permit under ORS 196.800
to 196.900 removal of no more than 100 cubic yards of material
from waters of this state for the purpose of maintaining drainage
and protecting agricultural land. The department may apply this
exemption in essential indigenous anadromous salmonid habitat
defined and designated pursuant to ORS 196.810 (1)(b). + }
    { - (12) - }   { + (13) + } As used in this section:
  (a) '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.
  (b) '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.
  SECTION 7. ORS 196.905, as amended by section 6, chapter 516,
Oregon Laws 2001, section 13, chapter 253, Oregon Laws 2003, and
section 4, chapter 342, Oregon Laws 2009, is amended to read:
  196.905. (1) Notwithstanding the exemptions in subsections (3)
to (8) of this section, a permit under ORS 196.600 to 196.905 is
required for any fill or removal of material in or from the
waters of this state when:
  (a) The fill or removal is a part of an activity whose purpose
is to bring an area of state waters into a use to which it was
not previously subject; and
  (b)(A) The flow or circulation of the waters of this state may
be impaired; or
  (B) The reach of the waters may be reduced.
  (2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
  (a) Such waterway or portion is situated within forestland; and
  (b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
  (3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and
ranching activities such as plowing, grazing, seeding, planting,
cultivating, conventional crop rotation or harvesting.
  (4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on lands zoned for exclusive farm use as
described in ORS 215.203 for the following activities:
  (a) Drainage or maintenance of farm or stock ponds; or
  (b) Maintenance of farm roads, provided that:
  (A) The farm roads are constructed and maintained in accordance
with construction practices designed to minimize any adverse
effects to the aquatic environment;
  (B) Borrow material for farm road maintenance does not come
from waters of this state unless authorized by the Department of
State Lands; and
  (C) Maintenance activities are confined to the scope of
construction for the original project.
  (5) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands 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 of the United States Department of
Agriculture, or its successor agency,   { - so - }   { + as + }
long as commercial agricultural production on the land has not
been abandoned for five or more years.
  (6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16 U.S.C.
3831 as in effect on January 1, 2010.
  (7) The exemptions in subsections (3) to (6) of this section do
not apply to any fill or removal that involves changing an area
of wetlands or converted wetlands to a nonfarm use.
  (8) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the maintenance or reconstruction of
structures such as dikes, dams, levees, groins, riprap,
tidegates, drainage ditches, irrigation ditches and tile drain
systems, provided that:
  (a) The structure was serviceable within the past five years;
and
  (b) Such 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.
  (9) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for temporary dams constructed for crop or
pasture irrigation purposes that are less than 50 cubic yards,
provided the following conditions are satisfied:
  (a) The removal or filling is conducted during periods that
minimize adverse effects to fish and wildlife in accordance with
guidance provided by the State Department of Fish and Wildlife;
  (b) The removal or filling does not jeopardize a threatened or
endangered species or adversely modify or destroy the habitat of
a threatened or endangered species listed under federal or state
law; and
  (c) Temporary fills are removed in their entirety and the area
is restored to its approximate original elevation.
  (10) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for maintenance, including emergency
reconstruction of recently damaged parts, of currently
serviceable roads or transportation structures such as groins and
riprap protecting roads, causeways and bridge abutments or
approaches.
  (11) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the maintenance of access roads constructed
to move mining equipment, subject to the following conditions:
  (a) The access roads are constructed and maintained in
accordance with construction practices that minimize adverse
effects to the aquatic environment;
  (b) Borrow material for access road maintenance does not come
from waters of this state unless authorized by the Department of
State Lands; and
  (c) Maintenance activities are confined to the scope of
construction for the original project.
  (12) The Department  { + of State Lands + } may adopt a rule
that exempts from the requirement to obtain a permit under ORS
196.800 to 196.900 voluntary habitat restoration projects that
have only minimal adverse impact on waters of this state.
   { +  (13) The Department of State Lands may adopt a rule that
exempts from the requirement to obtain a permit under ORS 196.800
to 196.900 removal of no more than 100 cubic yards of material
from waters of this state for the purpose of maintaining drainage
and protecting agricultural land. The department may apply this
exemption in essential indigenous anadromous salmonid habitat
defined and designated pursuant to ORS 196.810 (1)(b). + }
    { - (13) - }   { + (14) + } As used in this section:
  (a)(A) '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.
  (B) '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.
  (b) 'Harvesting' means physically removing crops or other
agricultural products.
  (c) 'Plowing' includes all forms of primary tillage, including
moldboard, chisel or wide-blade plowing, discing, harrowing or
similar means of breaking up, cutting, turning over or stirring
soil to prepare it for planting crops or other agricultural
products. 'Plowing' does not include:
  (A) The redistribution of soil, rock, sand or other surface
materials in a manner that changes areas of waters of this state
into dry land; or
  (B) Rock crushing activities that result in the loss of natural
drainage characteristics, the reduction of water storage and
recharge capability, or the overburdening of natural water
filtration capacity.
  (d) 'Seeding' means the sowing of seed or placement of
seedlings to produce crops or other agricultural products.

                               { +
MISCELLANEOUS + }

  SECTION 8.  { + (1) The amendments to ORS 274.040 (1) by
section 1 of this 2011 Act apply to leases issued by the
Department of State Lands before, on and after the effective date
of this 2011 Act.
  (2) The amendments to ORS 274.040 (3)(a) by section 1 of this
2011 Act apply to permits authorizing the impoundment of waters
for beneficial use that are issued by the Water Resources
Director before, on or after the effective date of this 2011 Act.
  (3) The amendments to ORS 274.040 (3)(b) by section 1 of this
2011 Act apply to:
  (a) Water right permits or water right certificates issued
before, on or after the effective date of this 2011 Act.
  (b) Proposed or final orders approving a water right permit
issued before, on or after the effective date of this 2011 Act.
  (c) Court decrees evidencing a water right entered before, on
or after the effective date of this 2011 Act.
  (4)(a) The amendments to ORS 274.043 by section 2 of this 2011
Act apply to:
  (A) Structures constructed on state-owned submerged and
submersible lands before, on or after the effective date of this
2011 Act by drainage districts organized under the provisions of
ORS chapter 547.
  (B) Riprap used to stabilize the banks along state-owned
submerged and submersible lands before, on or after the effective
date of this 2011 Act.
  (C) Voluntary habitat restoration work conducted on state-owned
submerged and submersible lands before, on or after the effective
date of this 2011 Act.
  (b) Any easement or lease under ORS chapter 274 entered into
before the effective date of this 2011 Act related to:
  (A) Structures on state-owned submerged and submersible lands
maintained by drainage districts organized under the provisions
of ORS chapter 547 need not be renewed, or may be terminated
before the date of renewal, by the grantee or lessee on or after
the effective date of this 2011 Act.
  (B) Riprap used to stabilize the banks along state-owned
submerged and submersible lands need not be renewed, or may be
terminated before the date of renewal, by the grantee or lessee
on or after the effective date of this 2011 Act.
  (C) Rights of way established prior to November 1, 1981, for
any county road over state-owned submerged and submersible lands,
and rights of way established prior to November 1, 1981, for any
city street over state-owned submerged and submersible lands,
need not be renewed, or may be terminated before the date of
renewal, by the grantee or lessee on or after the effective date
of this 2011 Act.
  (D) Voluntary habitat restoration work conducted on state-owned
submerged and submersible lands need not be renewed, or may be
terminated before the date of renewal, by the grantee or lessee
on or after the effective date of this 2011 Act.
  (c) Any person who does not renew, or who terminates before the
date of renewal, an easement or lease as described in paragraph
(b) of this subsection may not claim reimbursement from the
Department of State Lands for any amounts paid by the person
related to the easement or lease prior to the date of nonrenewal
or termination.
  (5) The amendments to ORS 274.885 by section 4 of this 2011 Act
apply to leases renewed, or first entered into, by the Department
of State Lands on or after the effective date of this 2011 Act.
  (6) The amendments to ORS 196.905 by sections 6 and 7 of this
2011 Act apply to permits first applied for, or permits renewed,
on or after the effective date of this 2011 Act. + }
  SECTION 9.  { + The unit captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
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