141-145-0005 Definitions As used in these rules: (1) “Access Authorization” is a written authorization issued by the Department for a specific length of time determined by the Director that allows access to state land for remediation or habitat restoration activities. (2) “Applicant” is any person applying for an authorization. (3) "Appraised Value" means an estimate of current fair market value of property (not including improvements) in dollars per square foot derived by disinterested persons of suitable qualifications, for example, a licensed independent appraiser. (4) "Assessed Value" means the current fair market value of the property (not including improvements) in dollars per square foot assigned to the land within the adjacent riparian tax lot or comparable tax lot by the county tax assessor. (5) “Authorization” means an approval of a use of state land granted by the Department in its capacity as a landowner, including for purposes of these rules access authorizations, leases, and easements. (6) “Authorized Area” is the area of state-owned land defined in the authorization for which a use is authorized. (7) “Compensation” or "Compensatory Payment" is the amount of money, or something of equivalent value, paid or provided for an authorization to the Department for the use of state-owned land. (8) “Conservation Easement” as defined in ORS 271.715(1), means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open space values of real property, ensuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. (9) “Department” means the Department of State Lands. The Department is the administrative arm of the State Land Board. (10) "Director" means the Director of the Department of State Lands or designee. (11) "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. (12) “Enhanced Monitored Natural Recovery” combines natural recovery with engineering approaches such as installing flow control structures to encourage natural deposition, or the placement of a thin layer of additional clean sediment or additives to enhance sorption or chemical transformation. (13) “Environmental Dredging” means the removal of contaminated sediments from a waterbody as part of a removal, remediation or habitat restoration project. (14) "Fair Market Value" is the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell, and both having reasonable knowledge of the relevant facts concerning the property. (15) “Habitat Restoration” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural functions to the lost or degraded native habitat. (16) “Holder” is the person who has been issued an authorization under these rules. (17) “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. (18) “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. (19) “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. (20) “Monitored Natural Recovery” is a remedy for contaminated sediment that uses ongoing, naturally occurring processes to contain, destroy, or reduce the bioavailability or toxicity of contaminants in sediment. (21) "Mitigation" means compensating for the effect by creating, restoring, enhancing or preserving substitute functions and values for the waters of this state. (22) “Natural Resource Damage Assessment” is a process by which a designated Natural Resources Trustee evaluates how natural resources were harmed over the time that an area has been contaminated and develops a restoration plan to compensate for those losses. (23) “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. (24) "Permanent Easement" is a type of easement that is issued in perpetuity. (25) “Permanent Structure” means a structure existing or intended to exist for an indefinite period. (26) "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. (27) “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. (28) “Preference Right Holder” means the person holding the preference right to lease as defined in these rules and ORS 274.040(1). (29) “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. (30) “Remediation” or “Remedial Action” as defined in ORS 465.200(23), means those actions consistent with a permanent remedial action taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of a hazardous substance so that it does not migrate to cause substantial danger to present or future public health, safety, welfare or the environment. “Remedial action” includes, but is not limited to: (a) Such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative drinking and household water supplies, and any monitoring reasonably required to assure that the actions protect the public health, safety, welfare and the environment. (b) Offsite transport and offsite storage, treatment, destruction or secure disposition of hazardous substances and associated, contaminated materials. (c) Such actions as may be necessary to monitor, assess, evaluate or investigate a release or threat of release. (31) “Removal” as defined in ORS 465.200(25), means the cleanup or removal of a released hazardous substance from the environment, such actions as may be necessary taken in the event of the threat of release of a hazardous substance into the environment, such actions as may be necessary to monitor, assess and evaluate the release or threat of release of a hazardous substance, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize or mitigate damage to the public health, safety, welfare or to the environment, that may otherwise result from a release or threat of release. “Removal” also includes but is not limited to security fencing or other measures to limit access, provision of alternative drinking and household water supplies, temporary evacuation and housing of threatened individuals and action taken under ORS 465.260. (32) “Site Diminishment Impact” is a measure of the negative effect, including but not limited to use restrictions, of the applicant’s proposed use on public trust uses of the state-owned submerged and submersible lands. It is used in calculating the fair compensation that a holder will pay for the use of the authorized area. (33) “Site Monitoring” means visiting a property on an established schedule to check compliance with an order or other agreement to complete remedial action or habitat restoration; or periodically visiting a property to determine compliance with the terms of a conservation easement. This includes the use of property and placement of structures not eligible for an authorization under Division 125. (34) “Soil Cap” or “Sediment Cap” means the placement of capping material over contaminated material. The contaminated material remains permanently in place. (35) "State Land" or "State-Owned Land" is land owned or managed by the Department or its agents and includes both Trust Land and Non-Trust Land. (36) “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. (37) “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 an authorization. A “structure” includes but is not limited to, a soil or sediment cap, moored dredge equipment, monitoring equipment, a ship, boat, vessel, or components of a restoration project. (38) "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. (39) "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. (40) "Use" means an activity on state-owned Trust and Non-Trust Land that requires an authorization under these rules. (41) “Use Restriction” means a proposed activity that encumbers state land resulting in the limiting or restriction of one or more public trust uses. Statutory/Other Authority: ORS 183, 273 & 274 Statutes/Other Implemented: ORS 274 History: DSL 2-2014, f. 1-13-14, cert. ef. 2-1-14