2017 ORS 274.040¹
Sale or lease of submersible lands
  • easements
  • occupation of submerged and submersible lands for water works

(1) Except as provided in ORS 274.043 (Exemptions from leasing requirements), in ORS 274.085 (Acquisition for Common School Fund investment) for leases of submersible lands acquired as an investment for the Common School Fund, in ORS 274.530 (Lease or license of stream beds for removal of material) (1) for leases of submersible lands of less than one year’s duration, in ORS 274.530 (Lease or license of stream beds for removal of material) (3) for licenses of less than three years’ duration, in ORS 274.873 (Proprietary authorizations for ocean renewable energy facilities) for proprietary authorizations within Oregon’s territorial sea as defined in ORS 196.405 (Definitions for ORS 196.405 to 196.515) 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 preferences provided in this subsection apply to any lease of submersible land for one year or more offered or issued under ORS 274.530 (Lease or license of stream beds for removal of material). The preferences provided in this subsection do not apply to any lease offered or issued by the department under ORS 274.705 (Definitions for ORS 274.705 to 274.860) to 274.860 (Protection and location of filled lands). 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 (Cancellation of permit for failure of proof of completion of appropriation);

(B) The water right is canceled pursuant to ORS 540.641 (Protest of cancellation); 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 (Placing in water matter injurious to shellfish), 509.510 (Taking shellfish from marked beds without permission), 511.606 (Taking food fish for commercial purposes in Nestucca Bay prohibited) to 511.806 (Taking salmon, shad, striped bass or sturgeon for commercial purposes in Willamette River prohibited), 622.270 (Reports of cultivators) or 622.320 (Plats as private property) to 622.350 (Prior claims, plats, transfers or debts unaffected).

(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 (Definitions for ORS 274.705 to 274.860) to 274.860 (Protection and location of filled lands).

(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 (Lease or license of stream beds for removal of material) 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. [Amended by 1961 c.37 §1; subsection (3) enacted as 1961 c.37 §2; 1967 c.421 §104; 1969 c.594 §32; subsection (4) enacted as 1969 c.675 §17; 1975 c.547 §1; 1975 c.765 §2; 1979 c.793 §3; 1981 c.158 §1; 1981 c.432 §1; 1991 c.217 §5; 1995 c.113 §2; 2003 c.350 §1; 2011 c.713 §1; 2015 c.386 §7]

Atty. Gen. Opinions

Lease to fill tidelands, State Land Board duties in reviewing proposal by ports to fill land, (1971) Vol 35, p 844; sale or lease of state-owned submersible lands, and new lands created thereon, (1972) Vol 36, p 150

Law Review Cita­tions

2 EL 92 (1971); 4 EL 345, 346 (1974)

Chapter 274

Atty. Gen. Opinions

Power of Depart­ment of Environ­mental Quality to regulate mining activities and recovery of oil and geothermal activities, (1972) Vol 35, p 1100; Division of State Lands’ authority to require lease or fill or removal permit for private company dredging submerged offshore lands to harvest clams, (1979) Vol 40, p 35; State Land Board’s authority to delegate duties to Port of Portland, (1979) Vol 40, p 111

Law Review Cita­tions

4 EL 343, 346, 348 (1974)

1 Legislative Counsel Committee, CHAPTER 274—Submersible and Submerged Lands, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors274.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 274, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano274.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.