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, 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. (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(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(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(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, 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(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(8), including: (A) The specific public interest under ORS 537.170(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 denying the application unless the Department makes specific findings to demonstrate that considering all of the public interest factors listed in ORS 537.170(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 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, the Director shall schedule a contested case hearing. Statutory/Other Authority: ORS 536.025, 536.027, 537.153 & 537.338 Statutes/Other Implemented: ORS 537.332 - 537.360 History: WRD 4-2006, f. & cert .ef. 10-2-06 WRD 8-2001, f. & cert. ef. 12-14-01 WRD 1-1996, f. & cert. ef. 1-31-96