justicedao/ipfs_state_laws huggingface dataset:
690-051-0050 Applications: Filing Procedure (1) All applications to use water for hydroelectric purposes shall be filed with the Director at Salem, Oregon. Applications shall be typed so that the paragraphs and headings correspond with the information required. All applications shall be accompanied by the documents specified in OAR 690-051-0070, or 690-051-0100, and shall be dated and designated as "Exhibit A", "Exhibit B", etc. (2) If the information required by these rules does not apply to the proposed project, it shall be noted on the application with a brief statement why the information does not apply. (3) Information required to file an application is listed in the rules reference in section (1) of this rule. At any time, the Director may require additional information from the applicant. (4) Applications on which no hearing has been held, shall meet all the requirements in these rules. (5) Any municipal corporation of this state or utility district organized under section 12, Article XI, Oregon Constitution who has applied to the Federal Energy Regulatory Commission (FERC) for a preliminary permit, an exemption from licensing, or a notice of intent to construct a qualifying conduit hydropower facility shall, at the same time, apply to the Water Resources Department for: (a) A permit under ORS 537.140 to appropriate water for a hydroelectric project, or (b) For a certificate to use water for hydroelectric purposes within an artificial delivery system under the applicant’s existing water right under ORS 543.765. (6) Any person other than in (5) above who has applied to the FERC for a preliminary permit, a license, an exemption from licensing, or a notice of intent to construct a qualifying conduit hydropower facility shall, at the same time apply to the Water Resources Department for: (a) A state preliminary permit under ORS 543.210, (b) A license under ORS 543.260, or (c) A certificate to use water for hydroelectric purposes within an artificial delivery system under the applicant’s existing water right under ORS 543.765. (7) An applicant for a new hydroelectric project shall submit to the Department a complete copy of any application filed with FERC or similar application to another federal agency responsible for authorizing the project. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0060 Consultation All applicants shall consult with appropriate government entities. Consultation shall occur before an application for a License or Permit is filed. The first consultation may occur with the agency representatives after the Preliminary Permit application has been accepted. Evidence of the consultation shall be filed with the License or Permit application. At a minimum, applicants shall consult with the Water Resources Department and affected local governments and the agencies under each heading listed below: (1) Fish and Wildlife Resources: (a) Oregon Department of Fish and Wildlife (ODFW); (b) U.S. Fish and Wildlife Service (USF&WS); (c) National Marine Fisheries Service (NMFS); (d) Appropriate Indian tribe(s) identified by the Legislative Commission on Indian services; and (e) Northwest Power and Conservation Council (NPCC), if the proposed project is within a Protected Area designated by the Columbia River Basin Fish and Wildlife Program (2014); including Protected Areas adopted August 10, 1988, as subsequently amended (September 14, 1988 and August 8, 1990, August 13, 1992). (2) Water Quality: Oregon Department of Environmental Quality (DEQ). (3) Historic, Cultural and Archaeological Resources: (a) State Historic Preservation Officer (SHPO); and (b) Appropriate Indian tribe(s) identified by the Legislative Commission on Indian Services. (4) Forestlands: (a) U.S. Forest Service; (b) U.S. Bureau of Land Management; and (c) Oregon Department of Forestry. (5) Wetlands: (a) Oregon Department of State Lands (DSL); (b) Oregon Parks and Recreation Department (OPRD); and (c) U.S. Army Corps of Engineers. (6) Scenic -- Aesthetic Resources, (a) Planning department of each affected local government; (b) DEQ (re: noise standards); (c) Federal managing agency, if public land or a national Wild and Scenic River; and (d) Oregon Parks and Recreation Department. (7) Recreation Resources: (a) Oregon Parks and Recreation Department; (b) Federal managing agency, if public land or a national Wild and Scenic River; and (c) Planning department of each affected local government. (8) Land Use and Access: (a) Planning department of each affected local government; (b) Appropriate state land management agencies; (c) Federal managing agency, if public land; and (d) Landowner(s), if private land. (9) Threatened and Endangered Species: (a) ODFW; (b) USF&WS and (c) NMFS. (10) Natural Areas: OPRD. Statutory/Other Authority: ORS 197, 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 12-1990, f. & cert. ef. 8-8-90 WRD 14-1986, f. & ef. 10-13-86
690-051-0080 Application of Standards to Preliminary Permits (1) Preliminary Permit applications shall be approved unless the Director finds the proposed project would not be in the public interest because of significant adverse impacts on natural resources or other uses of the water involved. The Commission shall act on all Preliminary Permits proposed in a designated Protected Area. (2) Information in the application and hearing record will be used to assess the public interest and to form conditions to be included in the Commission or Director’s order on the application. Approval of a Preliminary Permit application shall not convey the right to construct any project facilities. Issuance of a Preliminary Permit shall not constitute approval or assurance of approval for any subsequent application for hydroelectric license for the project. Failure to comply with conditions in the approval order may result in the cancellation of the Preliminary Permit. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0130 Hearings Requirements for Preliminary Permits, Licenses and Permits; Notice of Hearings (1) A public hearing shall be held on each application for a Preliminary Permit or as required under 690-051-0095(3)(a). The public hearing shall be held in a community near the proposed project with notice provided pursuant to section (2) of this rule. (2) Notice of hearing shall be given to: (a) The applicant; (b) Interested parties; (c) Property owners within the project vicinity; (d) The affected tribe(s) as identified by the Legislative Commission on Indian Services; (e) The governing body(ies) of any affected county(ies) or city(ies); and (f) The planning department(s) of the affected county(ies) or city(ies) as provided by ORS Chapters 183, 537 and 543. (3) The Director, through press releases or additional notices, also shall endeavor to provide general notice to individuals or organizations who have expressed an interest in the outcome of the proceedings. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0140 Time and Place of Hearings The conduct of contested hearings shall be as provided in OAR 137-003-0501 through -0700. The contested case hearing may be heard at the Director's office in Salem. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0150 Filing of Protest and Remonstrances (1) All protest and requests for standing must be filed with the Director within the time specified in the notice. To become a party to a contested case hearing the fees required under ORS 536.050(1) (j), (n), and/or (o) as appropriate must also be submitted by the notice date. (2) 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) For persons other than the applicant, the protest fee required under ORS 536.050. (3) Any person who supports the 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. The request for standing must be in writing, signed by the requester, and include the following: (a) The requester's name, mailing address and telephone number; (b) If the requester is representing a group, association or other organization, the name, address and telephone number of the represented group; (c) A statement that the requester supports the proposed final order as issued; (d) A detailed statement of how the requester would be harmed if the proposed final order is modified; and (e) The fee established under ORS 536.050. (4) Any person who has filed a timely request for standing may later file a petition for party status in any contested case hearing subsequently held on the matter for which standing was requested, in the manner described in OAR 137-003-0535. (5) Each person submitting a protest or a request for standing shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting the person's position by the close of the protest period. (6) The Department shall send a copy of all protests and requests for standing received to the applicant, the protestant(s), if any, and to each person who requested standing. Statutory/Other Authority: ORS 536.027, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93>br> WRD 14-1986, f. & ef. 10-13-86
690-051-0160 Standards for Evaluation The standards in OAR 690-051-0170 to 690-051-0290 implement the provisions of ORS 537.160, 537.170, 543.017, 543.225 and 543.255 for the review of all hydroelectric applications. To be approved, a project must comply with the minimum standards in ORS 543.017 and the requirements of OAR 690-051-0170 to 690- 051-0290, and must not impair or be detrimental to the public interest as provided in ORS 543.225. Statutory/Other Authority: ORS 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 14-1986, f. & ef. 10-13-86
690-051-0170 Protection of Designated Resource Areas and Special Management Areas (1) The Director shall consult with the managing agency for any proposed projects having effects on a designated resource area listed in OAR 690-051-0030(1) or a special management area listed in section (2) of this rule to determine conditions that may be required to ensure the proposed use is consistent with the authorized use of the area. (2) Section (1) of this rule applies to the following special management areas: (a) National wildlife refuges; (b) National recreation areas; (c) State wildlife management areas; (d) State forests; (e) County parks; (f) City parks; (g) Special district parks; (h) Sites listed in or determined eligible for inclusion on the National Register of Historic Places; (i) Areas managed by federal agencies for study, inclusion or designation as a special management area under federal law or regulation; and (j) Areas under study by state agencies for inclusion in or designation as a special management area under state statute or regulation. (k) Protected areas designated by the Columbia River Basin Fish and Wildlife Program (2014); including Protected Areas adopted on August 10, 1988, and subsequently amended (September 14, 1988 and August 8, 1990, August 13, 1992). (3) All applications for projects in or affecting the Columbia Gorge shall be consistent with the policy in the Columbia River Gorge National Scenic Area. P.L. 99-663. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0180 Mitigation, No Net Loss (1) The following standards on mitigation and no net loss are minimums. They apply to all natural resources in the project vicinity. Resource specific rules may impose stricter standards. In order to approve an application, the Director must determine the natural resources of the state will be maintained or enhanced. In making such a determination, the following standards must be applied: (a) No activity may be approved that may result in the net loss of natural resources. In determining whether a proposed activity may result in a net loss of natural resources, the department may consider mitigation. (b) Proposed mitigation must be in the project vicinity and determined as acceptable to the Director or Commission; (c) All mitigation measures which reasonably can, shall be fully functional when the project begins operation; and (d) The Collective benefits of all mitigation measures must equal or exceed the collective adverse impacts on natural resources so there is no net loss of natural resources. (2) In applying the standards in section (1) of this rule, the Commission or Director shall: (a) Consult with federal, state, and local resource agencies, and the appropriate affected tribe(s); and (b) Prefer mitigation that benefits the natural resource(s) affected, over mitigation that benefits some other natural resource(s). If mitigation that benefits the affected natural resource(s) is unacceptable or not possible, mitigation that benefits some other natural resource(s) may be considered. (3) The standards in section (1) of this rule shall apply to the following natural resources: water quality; wildlife; scenic and aesthetic resources; historic, cultural, and archaeologic; agricultural lands; forest resources; wetlands; plant life; fish life; recreation; soils; and natural communities and geologic features. (4) At the Director's discretion, the standards in section (1) of this rule may apply to natural resource(s) not identified in section (3) of this rule that an applicant or interested party can demonstrate to be a natural resource of value to the public. Anyone making a showing of value for a natural resource not listed in section (3) of this rule shall also propose, for consideration, a standard for the protection of the natural resource. If agreed by the Director and upon acceptable showing of public value, an applicant may propose enhancement or other mitigation of an unlisted natural resource to offset impacts on natural resources listed in section (3) of this rule. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0190 Water Resources The Director and Commission shall determine whether the proposed project would impair or be detrimental to the public interest so far as the coordinated, integrated state water resources policy is concerned. In order to approve an application, the Director shall have due regard for: (1) The amount of waters available for appropriation for beneficial use. (2) Whether the proposed use will preclude or interfere with any existing rights or permits for the use of water. (3) Whether the proposed use is consistent with the applicable State Water Resources Policies in OAR chapter 690, divisions 400, 410 and the Basin Program in OAR chapter 690, divisions 500 through 520 or, in the absence of a policy, the proposed use is consistent with the policies set forth in ORS 536.300 through 536.350. (4) Whether the project is consistent with achieving maximum economic development of the waters involved. (5) Whether the project is consistent with making the fullest practical use of the stream's hydroelectric potential in the project vicinity. (6) Whether the project will constitute wasteful, uneconomic, impracticable or unreasonable use of the waters involved. (7) Whether the project, including mitigation and enhancement measures, is consistent with conserving the highest use of the waters of the state for all beneficial purposes. (8) Whether the project is consistent with controlling the waters of the state for all beneficial purposes, including, drainage, sanitation and flood control. (9) Whether construction and operation of the proposed project complies with water quality standards established in OAR chapter 340, division 41. Exceptions to this standard may be allowed if permitted by Division 41 rules, and granted by the DEQ. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0210 Wildlife Wildlife and wildlife habitats in the project vicinity shall be maintained or enhanced. In order to approve an application, the Director shall apply the following standards: (1) The location, design, construction or operation of the proposed project shall not jeopardize the continued existence of animal species which have been: (a) Designated, or officially proposed by the USF&WS, or the NMFS as threatened or endangered pursuant to the Endangered Species Act of 1973; or (b) Identified by the Oregon Fish and Wildlife Commission or ODFW as threatened, endangered, limited or sensitive in Oregon. (2) The location, design, construction and operation of project facilities will minimize adverse impacts on wildlife habitat, nesting and wintering grounds, and wildlife migratory routes. (3) Project construction methods and scheduling will minimize disruption of wildlife and avoid premature or unnecessary land clearing in the project vicinity. (4) Unavoidable adverse impacts on wildlife or wildlife habitat will be mitigated in the project vicinity by acceptable methods such as replacement of vegetation, regulation of reservoir levels, creation of aquatic habitat, improvements in wildlife carrying capacity in the project vicinity or acquisition of land or management rights. (5) The project is consistent with applicable ODFW management programs in force on the effective date of these rules; (6) If, within the Columbia River Basin, the project is consistent with the provisions of the NPCC's Columbia River Basin Fish and Wildlife Program and the Northwest Conservation and Electric Power Plan. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0220 Plant Life In order to approve an application, the Director shall apply the following standard: that the location, design, construction or operation of the proposed project shall not jeopardize the continued existence of plant species which are: (1) Designated or officially proposed by the USF&WS as threatened or endangered pursuant to the Endangered Species Act of 1973. (2) Identified by the Oregon Department of Agriculture as endangered, threatened or candidate species in Oregon. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0230 Recreation No project may be approved that would result in a net loss of recreation opportunities. Scenic and aesthetic values shall be maintained or enhanced. In order to approve an application, the Director shall apply the following standards: (1) Project facilities will be designed, located and operated to substantially avoid visible or audible intrusion on the natural setting integral to existing recreational facilities, activities or opportunities. (2) The proposed project will not reduce the abundance or variety of recreational facilities or opportunities available in the project vicinity. (3) Unavoidable adverse impacts on nonwater dependent recreation facilities, activities or opportunities will be mitigated in the project vicinity by providing acceptable replacement facilities or opportunities of the same or similar nature and abundance. (4) The project will not have significant adverse impacts on any unique, unusual or distinct natural feature which provides the focus or attraction for non water dependent recreational facilities or activities. (5) Unavoidable adverse impacts on any water dependent recreational opportunity will be mitigated with acceptable replacement by or enhancement or another water dependent recreational opportunity available in the project vicinity. (6) The proposed project will not cause the loss of or significant adverse impact to any water dependent recreational opportunities of statewide significance. (7) Adverse impacts on any specific elements, such as flow regime, length of reach, access, season of use, degree of difficulty, of a water dependent recreational opportunity of statewide significance, will be offset by acceptable enhancement to other element(s) of the same water dependent recreational opportunity in the project vicinity. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86
690-051-0240 Hist.: Cultural and Archaeological Resources >>>end_of_rule<<< (1) Historic, cultural and archaeological resources shall be maintained or enhanced. In order to approve an application, the Director shall apply the following standards: (a) The project will not result in significant adverse impact(s) on any historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places; (b) The project will comply with state laws to protect Indian graves (ORS 97.740–97.760), historical materials (ORS 273.705, 273.711) and archaeological objects and sites (ORS 358.905, 358.955); (c) Unavoidable adverse impacts on historic, cultural and archaeological resources will be mitigated in accordance with generally accepted professional standards; and (d) Archaeological data of significance associated with a site not eligible for inclusion in the National Register of Historic Places will be recovered in accordance with generally accepted professional standards. (2) Before filing an application for a License or Permit, developers shall consult with the State Historic Preservation Office, the State Legislative Commission on Indian Services and appropriate tribes about Indian historic and cultural resources in the project vicinity. Statutory/Other Authority: ORS 536.025, 536.027, 537 & 543 History: WRD 8-2015, f. 12-18-15, cert. ef. 1-1-16 WRD 2-1993, f. & cert. ef. 5-19-93 WRD 14-1986, f. & ef. 10-13-86