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 (c) Is used solely for a public purpose. (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; (c) Placing pipelines; or (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 (c) How the applicant will address environmental issues associated with the proposed removal of material. (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; (c) Used to create, maintain or enhance fish or wildlife habitat; (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 (c) The Secretary of State and the State Treasurer in the performance of the duties of their constitutional offices. (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. Statutory/Other Authority: ORS 273.551, 274.525, 274.530, 274.550 & 274.560 Statutes/Other Implemented: ORS 274 .525 & 274 .550 History: DSL 2-2008, f. & cert. ef. 10-15-08