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Waterway Leasing
Q&As
photo Coos Bay
Coos Bay
Question:  How did the State of Oregon become the owner of submerged and submersible land?
Answer:   There are two separate legal doctrines under which Oregon gained ownership of waterway land: one is called "navigability;" the other "tidality." Under the Equal Footing Doctrine, federal courts have held that states entering the Union after the original 13 states have the same rights as those original states. When the original states took sovereignty of their land from the British after the American Revolution, those states became owners of the land underlying what are termed "navigable" waters as well as the land underlying tidal waters.
 
Therefore, when Oregon was admitted to the Union in 1859, it became the owner of all land underlying both the navigable waterways and tidal waters within its borders as a part of its sovereignty.
Question:  What waterway areas do the people of Oregon own?
Answer:  DSL manages segments of the following navigable waterways: Chetco, Columbia, Coos, Coquille, Klamath, John Day, McKenzie, Rogue, Sandy, Snake, Umpqua, and Willamette. Please see list of state-owned waterways.
 
In addition, DSL manages the land underlying the Territorial Sea, tidal lands of numerous rivers along the Pacific Coast, and a number of lakes such as Devils, Klamath, Mercer, North Tenmile, Siltcoos, Tenmile, Upper Klamath, and Woahink.
 
State law ORS 274.430 declares that all "meandered" (surveyed) lakes are "public waters." For more information on state ownership of meandered lakes, please see Ownership of Lakes in Oregon.
Question:  How does the Land Board and DSL manage this publicly owned submerged and submersible land?
 
Charleston photo Mike McCabe

Answer:  The Land Board and DSL hold these lands in trust for the public (under the "Public Trust Doctrine"). DSL works to clarify title and manage uses of these lands in the public´s best interests to ensure that any uses (for example, marinas, docks, sand and gravel mining, and log rafts) are authorized and pay their fair share as compensation to the public for the use of public land.
 
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Question:   What is the Public Trust Doctrine?
Answer:  This doctrine of law provides that the State of Oregon holds submerged and submersible land in trust for the benefit of all the people. The general public has a right to fully enjoy these resources for a wide variety of public uses including commerce, navigation, fishing, and recreation.
Question:  Did the state ever grant any of its submerged and submersible land to private owners?
Answer:  Yes. In the late 1870s, the Oregon State Legislature granted parcels of submersible land (between ordinary low and high water) to certain upland owners along the Willamette, Umpqua, Coquille, and Coos Rivers. This program ceased in 1878. As a result of the grants, some present upland owners along these particular rivers do have ownership down to the line of ordinary low water. (See OHW and OLW and ORS 274.005 Definitions).
 
In addition, along some other rivers, the state sold tideland and other submersible land to private owners. Even where the state granted or sold title to its submerged and submersible land to private individuals, the courts say that the granted lands are still subject to some public use rights under the Public Trust Doctrine. However, it is not legally clear what these rights may be in practice or whether later state action may limit such rights.
Question:  When must I obtain a lease or other form of authorization from DSL to use or occupy state-owned submerged and submersible land?
Answer:  You must obtain a lease or other form of authorization from DSL to undertake a wide variety of activities on state-owned submerged and submersible land such as aquaculture; industrial and/or commercial business areas; floating homes and floating home moorages; some residential uses; commercial and workboat moorages; and log storage and booming areas. DSL currently has about 400 waterway leases on over 30 waterways.
 
If you own a non-commercial, private use dock, float and/or boat house; floating recreational cabin; or water sport structure located on state-owned submerged and submersible land, you may not have to obtain a lease from DSL. Instead, the structure may qualify for a registration with DSL. To determine whether your structure is eligible for registration, please see Waterway Structure Registration.
 
DSL also issues temporary use permits and public facility licenses. Temporary use permits are granted upon application to DSL for uses usually less than one (1) year in duration. Public facility licenses are issued by DSL to public agency owned, operated and maintained transient use docks, floats, boat ramps, and other similar structures where no or minimal entry or use fees are charged.
Question:  What about other uses of waterway lands (e.g. pipelines, sand and gravel mining, land reclamation)?
 
 

Answer:  Outfalls, pipelines, telecommunications cables, power line crossings, and bridges constructed or placed on state-owned submerged and submersible land are generally authorized under easements and are governed by law and rule.  
Compensation is required in some instances for these uses based on the value of the land within the easement.
 
 
Question:  What other types of waterway permits are available?
Answer:  Temporary Use Permit
A "temporary use permit" is an authorization issued by DSL to a person allowing the short-term use, usually less than one year, of a specific area of state-owned submerged and submersible land for a specific use under specific terms and conditions.
Question:  Are there any exceptions or exemptions to having to obtain a lease or easement?
Answer:  Yes, there are a number of exceptions or exemptions to lease or obtaining an easement. You do not have to obtain a lease for publicly-owned submerged and submersible land for the following uses: public boat ramps, wharves, temporary log tie-ups approved by DSL, navigational aids, and facilities used in the performance of government functions (for example, the United States Coast Guard).
 
In addition, as already mentioned, you do not have to obtain a lease if you own a qualifying non-commercial, private use dock, float, and/or boat house; floating recreational cabin; or water sport structure. These structures are subject to registration.
 
You also do not have to obtain an easement for pipelines and associated fixtures crossing or situated on submerged and submersible lands that are used to withdraw water from a waterway or lake for any use under a number of situations explained in OAR 141-122-0010(4).
Question:  How do I obtain a lease for submerged and submersible land in front of my property and how long does it take?
Answer:  The first step is to apply for the lease. After receiving an application, DSL will review it for completeness, and determine if a lease is required or if the structure/use may be eligible for some other form of authorization such as a registration or easement.
 
If a lease is required, DSL will ask other natural resource agencies, local governments, and interested persons to review the application to determine if the proposed use conforms with local zoning requirements and any applicable waterway plans, or conflicts with public trust rights to use the waterway for navigation, fishing, commerce, and recreation. In addition to contacting the agencies and persons mentioned, DSL also will send each application to all property owners within 200 feet of the requested area to obtain their comments.
 
Generally, DSL allows thirty (30) days for comments to be submitted on a lease application. At the end of the comment period, DSL reviews comments and decides whether to issue the lease as requested, or require modifications to the proposed activity. Leases involving large or unusual facilities, or for which many comments are received, or which are requested by someone other than the adjacent property owner may take longer to process than routine applications. Hydroelectric facility and sand and gravel leases are processed differently.
Question:  Is the process any different if I want to obtain a lease for submerged and submersible land in front of another person´s property?
Answer:  Yes, the process is somewhat different if you are applying for a lease area in front of property, which you do not own. In this case, after DSL determines that your application is complete, it will notify the "upland" property owner to ask if they want to exercise their preference right to lease the subject submerged and submersible land. Under Oregon law (ORS 274.040), every owner of upland property has the first right of refusal to obtain a lease for that area in front of their property for which another person has applied to lease. The upland owner has thirty (30) days from the date DSL notifies them to "exercise" their preference right.
 
If the upland owner exercises the preference right to lease, DSL will notify the applicant that the lease application has been rejected. If the upland owner decides to not exercise the preference right, DSL will place a public notice twice over a fourteen (14) day period in the local newspaper indicating that the lease parcel is available for competitive bidding. If the only person submitting a bid is the original applicant, DSL will then proceed to process the application as already described. If two or more bids are received, DSL will select the highest bid and then proceed to process the application.
Question:  Why do some people along the same waterway have to obtain a lease and others do not?
Answer:  There are several reasons why you or your neighbors may have to obtain a lease and other persons living along the same waterway may not be required to do so. As already mentioned, not all submerged and submersible land is state-owned, even along the same waterway. In some areas, the state may have granted or sold its ownership; in others, the state may own only to the ordinary low water line. In some areas, dredging has created privately owned submerged land.
 
 
The type of use and size of structure also affect whether a lease is required. Oregon law and/or Land Board rules exempt from lease a number of uses such as wharves; navigation aids placed by public agencies; and structures, piers, docks/floats owned, operated by, or under contract to a government agency under certain circumstances; and non-commercial, private-use docks, floats, floating recreational cabins, and water sport structures.
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Question:  What will a lease cost me?
 

Alsea River lease photo Chris Castelli
Answer:  The rent charged for a waterway lease depends primarily upon the use. The current administrative rules, adopted by the Land Board in mid-1999, provide eight use classifications ranging from commercial marinas and docks to log boom areas. For most of these use classifications, several methods of rent calculation are available. A person applying for a lease may chose the method of rent calculation within the applicable use classification that gives them the lowest rent. However, because there is a minimum annual rental payment of $250 per year, a person may end up paying that amount if all of the methods within their use classification "pencil out" at less than $250 per year.
 
For example, a person owning a commercial marina may select one of three ways of determining their annual rent:
  • A "Flat Rate" method - $0.0191 per square foot times the leased area (in square feet), or 
  • A "Percent Of Gross" method - 3% of the annual actual slip or boat rental income derived from the facility on state-owned land, or 
  • A "Riparian Land Value" method - 5% of the per square foot assessed value or appraised value (land only) of the adjacent riparian tax lot times the number of square feet in the area to be leased from the state.
Question:  How often will you change my lease rate?
Answer:  If you select a method of rent determination, which is based on the Flat Rate, or Riparian Land value method, your rent will be increased 3% annually. If you select the Percent of Gross method, your annual actual rent will increase or decrease depending upon the prior year´s slip or boat rental activity.
Of course, if you change the size or the area you want to lease, or the way in which you are using that area, you may also be subject to a change in your lease rate.
Question:  Where does the money go that DSL receives from leasing state-owned submerged and submersible land?
Answer:  DSL receives about $2 million (including sand and gravel) annually from its waterway leases and registrations, which is deposited into the Common School Fund as "statutory funds" and used to manage the state´s waterway management programs. The costs to operate the leasing program are about 1/3 of the revenue.
Question:  Does DSL have any policies, goals, or objectives for managing state-owned submerged and submersible land?
Answer:  Yes, in 1995, the Land Board adopted an Asset Management Plan to guide DSL´s land management activities. With regard to state-owned submerged and submersible land, the basic management objective identified in the plan is to: "ensure the collective rights of the public to fully use and enjoy them for commerce, navigation, fishing, recreation and other related public purposes."
 
Secondary objectives are to:
  • "Actively pursue leases for unauthorized uses and for unleased lands, with a focus on the potential leasing of higher rent activities on major waterways in urban areas."
  •  "Evaluate methods for calculating lease rates for submerged and submersible lands and resources to ensure that the state receives fair compensation reflective of local market conditions." 
In addition to the Asset Management Plan, DSL is also guided in its management of state-owned submerged and submersible land by Article VIII, Section 5 of the Oregon Constitution. It provides: "The board shall manage lands under its jurisdiction with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management." 
 
Other land management guidance is contained in Chapter 274 of the Oregon State Statute (Submerged and Submersible Lands).
Question:  If I obtain a lease from the state, can I keep people out of the lease area?
Answer:  A waterway lease only allows you to use the area for the purpose(s) indicated on the lease. It is "exclusive" only to the extent that as long as you are in full compliance with all the terms and conditions of your lease, it prevents DSL from offering the area under lease to another person. It does not allow you to "exclude" the public from the entire lease area.
 
With DSL´s permission, however, a lessee may prohibit or restrict people from entering into unsafe portions of the lease area in order to prevent injury to them. Lessees may also prohibit the public´s use of your personal private property (docks, ramps, etc.) located within the lease area.
Question:  Can the Land Board restrict waterway development or discourage certain uses that are inappropriate or damaging to the waterway?
Answer:  The Land Board can, by rule, close or restrict development on state-owned submerged and submersible land in order to prevent unreasonable interference with the public´s right to use the waterway for commerce, navigation, fishing and recreation. The rule could also set limits on the size, location and type of use.
 
DSL does not offer leases for the purpose of preventing public use of state-owned submerged and submersible land, or the waters overlying such property. The public has Public Trust rights to use this land and water that DSL cannot abridge or rescind.
 
Disclaimer
Information provided on the waterway leasing program of the Oregon Department of State Lands is not intended as legal analysis or advice. If you have additional questions about the waterway leasing program, please contact the property manager responsible for your geographic area.
 
 
 
 
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