690-380-4010 Preliminary Determination (1) After the conclusion of the public comment period described in OAR 690-380-4000(4), the Department shall prepare a preliminary determination of whether the application should be approved or denied taking into account comments received in response to the notice provided under OAR 690-380-4000 and the considerations described in section (2) of this rule. (2) The Department's preliminary determination shall include an assessment of whether: (a) The right has been used over the past five years according to the terms and conditions of the right and that the right is not subject to forfeiture under ORS 540.610; (b) The water user is ready, willing and able to use the full amount of water allowed under the right; (c) The proposed transfer would result in enlargement; (d) The proposed transfer would result in injury; and (e) Any other requirements for water right transfers are met. (3) For a preliminary determination that indicates that an application should be denied, the preliminary determination shall: (a) Describe the basis for the denial; and (b) Identify any conditions or restrictions that, if included in the transfer, would allow approval of the transfer. (4) The Department shall provide a copy of the draft preliminary determination to the applicant and provide the applicant a period of at least 30 days to amend the application to address any issues identified by the Department in the preliminary determination, including the quantity of water to be transferred, or to withdraw the application. (5) For permanent transfers under OAR 690-380-2000, upon receipt of the draft preliminary determination, an applicant other than an entity that meets the criteria described in OAR 690-380-3000(13)(b) or (c) shall submit the following information: (a) A report of ownership information as defined in OAR 690-380-0100(10) for the land to which the water right is appurtenant; (b) A copy of any water right conveyance agreement(s) for the land to which the water right is appurtenant; and (c) If the landowner identified in the report of ownership information is not the applicant, documentation to demonstrate that the applicant is authorized to pursue the transfer, which shall include: (A) A notarized statement by the landowner(s) identified in the report of ownership information consenting to the transfer; (B) If the interest in the water right has been conveyed, a notarized statement consenting to the transfer from the person or authorized representative(s) of the entity to whom the interest in the water right has been conveyed identified in a water right conveyance agreement; or (C) Other documentation demonstrating that the applicant is authorized to pursue the transfer. (6) The report of ownership information required under subsection (5)(a) of this rule must: (a) Be prepared no earlier than three months prior to the date of the draft preliminary determination showing current ownership; or (b) If the interest in the water right has been conveyed be prepared within three months of the date the water right conveyance agreement was recorded or show ownership for the appurtenant land at the time the water right conveyance agreement was recorded. (7) The draft preliminary determination shall constitute the notification of the Department's intent to cancel a supplemental right required under OAR 690-380-2250. (8) If the applicant amends the application or provides additional information in support of approval of the application, the Department shall revise the draft preliminary determination as appropriate. Statutory/Other Authority: ORS 536.025 & 536.027 Statutes/Other Implemented: ORS 540.510 - 540.532 History: WRD 1-2009, f. & cert. ef. 6-18-09 WRD 5-2006, f. & cert. ef. 10-6-06 WRD 8-2004, f. & cert. ef. 11-5-04 WRD 2-2003, f & cert. ef. 5-1-03