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 (c) Deny the application. (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. Statutory/Other Authority: ORS 183, 273 & 274 Statutes/Other Implemented: ORS 274 History: DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17 DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13