ORS 537.621
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 protestant’s 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 protestant’s 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 department’s 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]

Source: Section 537.621 — Review of application; proposed final order; presumption; rebuttal; findings and conclusions; flow rate and duty; standing; protest; final order; contested case hearing, https://www.­oregonlegislature.­gov/bills_laws/ors/ors537.­html.

Notes of Decisions

Protest of final order must include timely submission of protest fee. Dority v. Water Resources Dept., 149 Or App 124, 942 P2d 292 (1997)

Law Review Citations

47 EL 519 (2017)

537.010
Definition of “Water Rights Act.”
537.040
Registration of water for road construction, maintenance or reconstruction
537.090
Laws applicable to geothermal wells
537.095
Interference between geothermal well and other water appropriation
537.097
Verification of land ownership
537.099
Water use report from governmental entity
537.110
Public ownership of waters
537.120
Right of appropriation
537.130
Permit to appropriate water required
537.131
Reclaimed water
537.132
Exemption from permit requirement for use of reclaimed water
537.133
Permittee’s right to enter on forestland
537.135
Permit required to appropriate water for recharging ground water sources
537.139
Failure to obtain authorization for access to certain land
537.140
Application for permit
537.141
Uses of water not requiring water right application, permit or certificate
537.142
Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program
537.143
Limited license to use or store surface or ground water or to use stored water
537.144
Request for right to use water under limited license
537.145
Notice of filing of application to appropriate water for hydroelectric purposes
537.147
Permit to use stored water
537.150
Filing of application
537.153
Review of application
537.160
Approval for beneficial use
537.170
Contested case hearing on application
537.173
Exceptions to final order
537.175
Time limit for issuing final order or scheduling contested case hearing
537.190
Terms and conditions of approval
537.211
Issuance of permit if application approved
537.220
Assignment of application, permit or license
537.225
Full or partial assignment of water right permit
537.227
Protest of application to assign all or part of water right permit
537.230
Time allowed for construction of irrigation or other work
537.240
Federal permit
537.248
Requirement to include in reservoir permit date for beginning and completing construction and for perfecting water right
537.249
Election to have proposed reservation considered as application for permit or rulemaking proceeding
537.250
Water right certificate
537.252
Certificate issued for land not described in permit
537.260
Cancellation of permit for failure of proof of completion of appropriation
537.270
Conclusiveness of certificate
537.282
Definition of “municipal applicant.”
537.283
Procedure for applications to appropriate water for hydroelectric power
537.285
Municipal applicant may develop hydroelectric project jointly with private person
537.287
Rules for joint project of municipal applicant and private person
537.289
Conditions to be imposed on permit of municipal corporation or district
537.292
Conditions to be imposed on certificate of municipal corporation or district
537.295
Cancellation of permit when holder fails to continue to qualify as municipal applicant
537.297
Cancellation of water right certificate when holder fails to continue to qualify as municipal applicant
537.299
Consequences of cancellation of permit or certificate if holder no longer municipal applicant
537.310
Acquisition of water rights for railway purposes
537.320
Entry on land for survey purposes, preliminary to appropriation and diversion of waters
537.330
Disclosure required in real estate transaction involving water right
537.332
Definitions for ORS 537.332 to 537.360
537.334
Findings
537.336
State agencies authorized to request in-stream water rights
537.338
Rules for state agency request for in-stream water right
537.341
Certificate for in-stream water right
537.343
Proposed final order
537.346
Conversion of minimum perennial streamflows to in-stream water rights
537.348
Purchase, lease or gift of water right for conversion to in-stream water right
537.349
Processing request for in-stream water right
537.350
Legal status of in-stream water right
537.352
Precedence of uses
537.354
In-stream water right subject to emergency water shortage provisions
537.356
Request for reservation of unappropriated water for future economic development
537.358
Rules for reservation for future economic development
537.360
Relationship between application for in-stream water right and application for certain hydroelectric permits
537.385
Extension of irrigation season
537.390
Valuation of water rights
537.395
Public recapture of water power rights and properties
537.400
Reservoir permits
537.405
Exempt reservoirs
537.407
Water right certificate for reservoirs existing before January 1, 1993
537.409
Alternate permit application process for qualifying reservoirs
537.410
Failure to commence or complete work, or to properly apply water, as grounds for cancellation of permit
537.420
Notice of hearing
537.440
Cancellation of permit
537.445
Hearing upon proposal to cancel permit or appropriation
537.450
Rules for proof as to work and use of water under permits
537.455
Definitions for ORS 537.455 to 537.500 and 540.510
537.460
Legislative findings
537.463
Applicability of ORS 537.455 to 537.500
537.465
Application for allocation of conserved water
537.470
Allocation of conserved water by commission
537.480
Rules
537.485
Priority of right to use conserved water
537.490
Use of conserved water
537.495
Receipt by state agency or political subdivision of right to use conserved water
537.500
Legal status of conserved water right
537.505
Short title
537.515
Definitions for ORS 537.505 to 537.795 and 537.992
537.525
Policy
537.531
Legislative findings
537.532
Injection of ground water into aquifers
537.534
Rules for permitting and administering aquifer storage and recovery projects
537.535
Unlawful use or appropriation of ground water, including well construction and operation
537.545
Exempt uses
537.575
Permits granted, approved or pending under former law
537.585
Beneficial use of ground water prior to August 3, 1955, recognized as right to appropriate water when registered
537.595
Construction or alteration of well commenced prior to August 3, 1955, recognized as right to appropriate water when registered
537.605
Registration of right to appropriate ground water claimed under ORS 537.585 or 537.595
537.610
Recording registration statement
537.615
Application for permit to acquire new right or enlarge existing right to appropriate ground water
537.620
Determination of completeness of application
537.621
Review of application
537.622
Contested case hearing
537.625
Final order
537.626
Exceptions to final order
537.627
Time limit for issuing final order or scheduling contested case hearing
537.628
Terms
537.629
Conditions or limitations to prevent interference with other users
537.630
Time allowed for construction work under permit
537.635
Assignment of application, certificate of registration or permit
537.665
Investigation of ground water reservoirs
537.670
Determination of rights to appropriate ground water of ground water reservoir
537.675
Determination of rights in several reservoirs or of critical ground water area in same proceeding
537.680
Taking testimony
537.685
Findings of fact and order of determination
537.690
Filing evidence, findings and determinations
537.695
Conclusive adjudication
537.700
Issuing ground water right certificate
537.705
Ground water appurtenant
537.720
Violation of terms of law or permit or certificate
537.730
Designation of critical ground water area
537.735
Rules designating critical ground water area
537.740
Filing rules designating critical ground water area
537.742
Contested case proceeding to limit use of ground water in critical ground water area
537.743
Program to remediate certain domestic water wells
537.744
Domestic Well Remediation Fund
537.745
Voluntary agreements among ground water users from same reservoir
537.746
Mitigation credits for projects in Deschutes River Basin
537.747
Water well constructor’s license
537.750
Examination for license
537.753
Bond or letter of credit
537.762
Report of constructor before beginning work on well
537.763
Water Resources Department Operating Fund
537.765
Log of constructing, altering, abandoning or converting well
537.766
Water Well Abandonment, Repair and Replacement Fund
537.767
Disbursement of moneys in Water Well Abandonment, Repair and Replacement Fund
537.769
Local regulation of wells and water well constructors
537.772
Pump tests
537.775
Wasteful or defective wells
537.777
Regulation of controlling works of wells and distribution of ground water
537.780
Powers of Water Resources Commission
537.781
Applying for injunction to address violation or potential violation
537.783
Reinjection of geothermal fluids
537.785
Fees
537.787
Investigation of violation of ground water laws
537.789
Well identification number
537.791
Request for well identification number
537.793
Effect of failure to comply with ORS 537.789 or 537.791
537.795
ORS 537.505 to 537.795 supplementary
537.796
Rules regarding low temperature geothermal appropriations
537.797
Criteria for certification of land surveyors, engineers and geologists to determine work completion
537.798
Water right examiner certificate
537.799
Survey for issuance of water right certificate
537.800
Waste, spring and seepage waters
537.801
Definitions
537.803
Application proposing use of water outside of basin of origin
537.805
Processing of application
537.809
Reservation of water in basin of origin
537.810
Diversion or appropriation of waters from basin of origin without legislative consent prohibited
537.820
Application of provisions to waters forming common boundary between states
537.830
Condemnation of waters for use outside basin of origin
537.835
City of Walla Walla, Washington, may appropriate, impound and divert certain waters from Mill Creek
537.840
Legislative consent
537.850
Suits to protect state interests
537.855
Domestic water supply district permitted to divert water out of state
537.860
Vested rights protected
537.870
Out-of-state municipalities
537.880
Policy
537.885
Licensing or registration required for drilling of geotechnical hole
537.890
Report form
537.895
Water Resources Department Geotechnical Fund
537.990
Criminal penalties
537.992
Civil penalties
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