OAR 690-077-0037
Application Processing: Public Interest Review


(1)

Unless the applicant requests withdrawal of an application following the initial review described in OAR 690-077-0029 (Application Processing: Initial Review), before issuing a proposed final order, the Department shall determine whether the public interest presumption is established for the proposed water use, as described in 690-077-0033 (Application Processing: Public Interest Presumption).

(2)

If the Department determines that the public interest presumption is not established, the Department shall determine whether the proposed use will impair or be detrimental to the public interest considering the factors listed in ORS 537.170 (Contested case hearing on application)(8) and may either:

(a)

Propose denial of the application upon a finding that the use will impair or be detrimental to the public interest; or

(b)

Make specific findings to demonstrate that even though the presumption is not established, the proposed use will not impair or be detrimental to the public interest and propose approval of the application with appropriate modifications or conditions.

(3)

If the Department determines that the public interest presumption is established or that the proposed instream use can be modified or conditioned to meet the public interest presumption criteria:

(a)

The Department shall further evaluate the proposed use, any comments received, information available in its files or received from other interested agencies and any other available information to determine whether the public interest presumption is overcome. The Department may find that the presumption is overcome if a preponderance of evidence shows that the proposed use will impair or be detrimental to the public interest as demonstrated in comments or a finding of the Department that shows:

(A)

The specific public interest under ORS 537.170 (Contested case hearing on application)(8) that would be impaired or detrimentally affected; and

(B)

Specifically how the identified public interest would be impaired or detrimentally affected.

(b)

In making any determination or finding in (3)(a) of this rule, the Department shall, at a minimum, consider the factors listed below, including any potential effects that the proposed use may have on these factors, where applicable:

(A)

Threatened, endangered or sensitive species;

(B)

Water quality, with special attention to sources either listed as water quality limited or for which total maximum daily loads have been set under Section 303(d) of the federal Clean Water Act and sources which the Environmental Quality Commission has classified as outstanding resource waters as defined in OAR 340-041-0002 (Definitions)(42);

(C)

Fish or wildlife;

(D)

Recreation;

(E)

Economic development; and

(F)

Local comprehensive plans, including supporting provisions such as public facilities plans.

(c)

In making any determination or finding in (3)(a) of this rule, the Department may consult and communicate with state and federal agencies and local governments as appropriate.

(4)

If the Department determines that the presumption is established and not overcome under the provisions of Section (3) of this rule, the Department shall issue a proposed final order recommending issuance of the certificate subject to any appropriate modifications or conditions. If the Department then receives a protest filed pursuant to OAR 690-077-0043 (Application Processing: Protests and Standing), which asserts the presumption is not established or should be overcome, the Department shall evaluate the protest and supporting evidence in accordance with this Section and Sections (5)–(7) of this rule. The Department shall find that the public interest presumption is overcome if a preponderance of evidence shows that:

(a)

One or more of the four public interest presumption criteria listed in OAR 690-077-0033 (Application Processing: Public Interest Presumption)(1)(a)–(d) are not met;

(b)

The proposed use may impair or be detrimental to the public interest according to standards described in ORS 537.170 (Contested case hearing on application)(8), including:

(A)

The specific public interest under ORS 537.170 (Contested case hearing on application)(8) that would be impaired or detrimentally affected; and

(B)

Specifically how the identified public interest would be impaired or detrimentally affected.

(5)

If the Department finds that under Section (4) of this rule the presumption is overcome, the Department shall issue a final order in accordance with OAR 690-077-0047 (Application Processing: Final Orders) denying the application unless the Department makes specific findings to demonstrate that considering all of the public interest factors listed in ORS 537.170 (Contested case hearing on application)(8) the issuance of an instream water right certificate will not impair or be detrimental to the public interest.

(6)

If the Department finds that under Section (4) of this rule the presumption is not overcome, the Department shall issue a final order in accordance with OAR 690-077-0047 (Application Processing: Final Orders) approving the application with any appropriate modifications or conditions.

(7)

If the Director finds that a significant dispute about the proposed water use related to the public interest exists and a protest has been filed under OAR 690-077-0043 (Application Processing: Protests and Standing), the Director shall schedule a contested case hearing.

Source: Rule 690-077-0037 — Application Processing: Public Interest Review, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=690-077-0037.

690‑077‑0000
Purpose
690‑077‑0010
Definitions
690‑077‑0015
General Statements
690‑077‑0019
State Agency Instream Water Right Applications: Process for Instream Water Right Certificate Requests
690‑077‑0020
State Agency Instream Water Right Applications: Application Requirements
690‑077‑0027
Application Processing: Completeness Review
690‑077‑0029
Application Processing: Initial Review
690‑077‑0031
Application Processing: Public Notice and Comments
690‑077‑0033
Application Processing: Public Interest Presumption
690‑077‑0037
Application Processing: Public Interest Review
690‑077‑0039
Application Processing: Proposed Final Order
690‑077‑0043
Application Processing: Protests and Standing
690‑077‑0046
Application Processing: Determination to Hold a Contested Case Hearing
690‑077‑0047
Application Processing: Final Orders
690‑077‑0048
Application Processing: Final Public Interest Determination
690‑077‑0049
Application Processing: Statement of Findings
690‑077‑0051
Application Processing: Contested Case Hearing on Final Order
690‑077‑0052
Application Processing: Time Requirements
690‑077‑0053
Application Processing: Issuance of Instream Water Right Certificate
690‑077‑0054
Conversion of Minimum Perennial Streamflows to Instream Water Rights
690‑077‑0055
Disposition of Minimum Perennial Stream-flows
690‑077‑0065
Instream Transfers and Leases: General Provisions
690‑077‑0070
Application for Instream Transfer
690‑077‑0075
Processing an Instream Transfer Application
690‑077‑0076
Application for an Instream Lease
690‑077‑0077
Processing an Instream Lease Application
690‑077‑0079
Split Season Use Instream Leasing
690‑077‑0080
Miscellaneous Provisions: Cancellation or Waiving of an Instream Water Right
690‑077‑0090
Miscellaneous Provisions: Drought Emergency Provisions
690‑077‑0100
Miscellaneous Provisions: Precedence of Future Uses
Last Updated

Jun. 8, 2021

Rule 690-077-0037’s source at or​.us