2013 ORS § 537.621¹
Review of application
- • proposed final order
- • presumption
- • rebuttal
- • findings and conclusions
- • flow rate and duty
- • standing
- • protest
- • final order
- • contested case hearing
(1) Within 60 days after the Water Resources Department proceeds with the application under ORS 537.620 (Determination of completeness of application) (5), the department shall complete application review and issue a proposed final order approving or denying the application or approving the application with modifications or conditions. The department may request the applicant to provide additional information needed to complete the review. If the department requests additional information, the request shall be specific and shall be sent to the applicant by registered mail. The department shall specify a date by which the information must be returned, which shall be not less than 10 days after the department mails the request to the applicant. If the department does not receive the information or a request for a time extension under ORS 537.627 (Time limit for issuing final order or scheduling contested case hearing) by the date specified in the request, the department may reject the application and may refund fees in accordance with ORS 536.050 (Fees) (4)(a). The time period specified by the department in a request for additional information shall allow the department to comply with the 60-day time limit established by this subsection.
(2) In reviewing the application under subsection (1) of this section, the department shall determine whether the proposed use will ensure the preservation of the public welfare, safety and health as described in ORS 537.525 (Policy). The department shall presume that a proposed use will ensure the preservation of the public welfare, safety and health if the proposed use is allowed in the applicable basin program established pursuant to ORS 536.300 (Formulation of state water resources program) and 536.340 (Classification of water as to highest and best use and quantity of use) or given a preference under ORS 536.310 (Purposes and policies to be considered in formulating state water resources program) (12), if water is available, if the proposed use will not injure other water rights and if the proposed use complies with rules of the Water Resources Commission. This shall be a rebuttable presumption and may be overcome by a preponderance of evidence that either:
(a) One or more of the criteria for establishing the presumption are not satisfied; or
(b) The proposed use would not ensure the preservation of the public welfare, safety and health as demonstrated in comments, in a protest under subsection (7) of this section or in a finding of the department that shows:
(A) The specific aspect of the public welfare, safety and health under ORS 537.525 (Policy) that would be impaired or detrimentally affected; and
(B) Specifically how the identified aspect of the public welfare, safety and health under ORS 537.525 (Policy) would be impaired or be adversely affected.
(3) The proposed final order shall cite findings of fact and conclusions of law and shall include but need not be limited to:
(a) Confirmation or modification of the preliminary determinations made in the initial review;
(b) A brief statement that explains the criteria considered relevant to the decision, including the applicable basin program and the compatibility of the proposed use with applicable land use plans;
(c) An assessment of water availability and the amount of water necessary for the proposed use;
(d) An assessment of whether the proposed use would result in injury to existing water rights;
(e) An assessment of whether the proposed use would ensure the preservation of the public welfare, safety and health as described in ORS 537.525 (Policy);
(f) A draft permit, including any proposed conditions, or a recommendation to deny the application;
(g) Whether the rebuttable presumption under subsection (2) of this section has been established;
(h) The date by which protests to the proposed final order must be received by the department; and
(i) The flow rate and duty of water allowed.
(4) In establishing the flow rate and duty of water allowed, the department may consider a general basin-wide standard, but first shall evaluate information submitted by the applicant to demonstrate the need for a flow rate and duty higher than the general standard. If the applicant provides such information, the department shall authorize the requested rate and duty except upon specific findings related to the application to support a determination that a lesser amount is needed. If the applicant does not provide information to demonstrate the need for a flow rate and duty higher than the general basin-wide standard, the department may apply the general standards without specific findings related to the application.
(5) The department shall mail copies of the proposed final order to the applicant and to persons who have requested copies and paid the fee required under ORS 536.050 (Fees) (1)(p). The department also shall publish notice of the proposed final order by publication in the weekly notice published by the department.
(6) Any person who supports a proposed final order may request standing for purposes of participating in any contested case proceeding on the proposed final order or for judicial review of a final order. A request for standing shall be in writing and shall be accompanied by the fee established under ORS 536.050 (Fees) (1)(n).
(7) Any person may submit a protest against a proposed final order. A protest shall be in writing and shall include:
(a) The name, address and telephone number of the protestant;
(b) A description of the protestants interest in the proposed final order, and if the protestant claims to represent the public interest, a precise statement of the public interest represented;
(c) A detailed description of how the action proposed in the proposed final order would impair or be detrimental to the protestants interest;
(d) A detailed description of how the proposed final order is in error or deficient and how to correct the alleged error or deficiency;
(e) Any citation of legal authority supporting the protest, if known; and
(f) The protest fee required under ORS 536.050 (Fees).
(8) Requests for standing and protests on the proposed final order shall be submitted within 45 days after publication of the notice of the proposed final order in the weekly notice published by the department. Any person who asks to receive a copy of the departments final order shall submit to the department the fee required under ORS 536.050 (Fees) (1)(p), unless the person has previously requested copies and paid the required fee under ORS 537.620 (Determination of completeness of application) (7), the person is a protestant and has paid the fee required under ORS 536.050 (Fees) (1)(j) or the person has standing and has paid the fee under ORS 536.050 (Fees) (1)(n).
(9) Within 60 days after the close of the period for receiving protests, the Water Resources Director shall:
(a) Issue a final order as provided under ORS 537.625 (Final order) (1); or
(b) Schedule a contested case hearing if a protest has been submitted and if:
(A) Upon review of the issues, the director finds that there are significant disputes related to the proposed use of water; or
(B) Within 30 days after the close of the period for submitting protests, the applicant requests a contested case hearing. [1995 c.416 §25; 1995 c.549 §1a; 1997 c.446 §7; 1997 c.587 §10; 2007 c.188 §3; 2009 c.819 §§10,17; 2013 c.644 §10]