justicedao/ipfs_state_laws huggingface dataset:
690-053-0040 Protests (1) Any person may submit a protest against a proposed amendment order. A protest shall be in writing and include: (a) The name, address and telephone number of the protestant. (b) A description of the protestant’s interest in the amendment 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 amendment will be detrimental to the protestant’s interest. (d) A detailed description of how the amendment 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. (f) For persons other than the applicant, the protest fee required under ORS 536.050. (2) Each person submitting a protest shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting the person’s position by the close of the protest period. Failure to raise a reasonably ascertainable issue in a protest or in a hearing or failure to provide sufficient specificity to afford the Department an opportunity to respond to the issue precludes judicial review based on that issue. (3) Protests shall be submitted within 45 days after publication of the notice of the amendment in the weekly notice published by the Department. (4) Within 10 days after the close of the filing period established under Section 3 of this rule, the Department shall send a copy of all protests to the applicant, and the protestant(s), if any. Statutory/Other Authority: ORS 543.092 & 536.027 Statutes/Other Implemented: ORS 543.092 & 543A History: WRD 2-2001, f. & cert. ef. 3-30-01
690-053-0045 Contested Case Hearings (1) Within 30 days after the close of the period for receiving protests, the Director shall determine whether to issue a final order or schedule a contested case hearing. (2) The determination of whether to conduct a contested case hearing will be made according to the provisions of OAR 690-310-0170. (3) The contested case hearing will be conducted according to OAR 137, division 3. Statutory/Other Authority: ORS 543.092 & 536.027 Statutes/Other Implemented: ORS 543.092 & 543A History: WRD 2-2001, f. & cert. ef. 3-30-01
690-053-0050 Final Order (1) If after the contested case hearing or, if a hearing is not held, after the close of the period allowed to file a protest, the Director determines that the proposed amendment is consistent with the amendment criteria set forth in OAR 690-053-0020, the Director shall issue a final order approving the amendment. The approval shall be on such terms and conditions as are necessary to ensure compliance with the amendment criteria in OAR 690-053-0020. (2) If the Director finds the proposed amendment does not comply with the amendment criteria set forth in OAR 690-053-0020, the Director shall issue a final order rejecting the application. Statutory/Other Authority: ORS 543.092 & 536.027 Statutes/Other Implemented: ORS 543.092 & 543A History: WRD 2-2001, f. & cert. ef. 3-30-01
690-054-0000 Purpose and Applicability These rules establish definitions and procedures for the conversion of a Hydroelectric Water Right to an Instream Water Right in accordance with ORS 543A.305. The conversion process is for Hydroelectric Water Rights beneficially used and which ceased beneficial use within 5 years of October 23, 1999, or later. Conversion of a Hydroelectric Water Right to an Instream Water Right is not a new allocation of water within a stream basin. A Hydroelectric Water Right subject to these rules shall be considered for conversion to an Instream Water Right prior to any forfeiture proceeding under ORS 540.610. These rules do not apply to Projects on boundary waters that operate with water rights issued by the State of Oregon and by any other state, except upon the written request of the water right holder. Statutory/Other Authority: ORS 536.027 Statutes/Other Implemented: ORS 543A.305 History: WRD 2-2022, adopt filed 07/14/2022, effective 07/14/2022
690-054-0030 Notice of Consideration for Conversion: Requirements and Comment Period (1) The Director shall prepare a notice of consideration for conversion with a 30 calendar day comment period. The notice shall include the following information: (a) The eligibility determinations and preliminary findings of fact identified in OAR 690-054-0020; (b) The county or counties in which the Project is located; (c) The Project file number, permit, certificate, or decree volume and page; (d) The name of the surface water source(s); (e) The location of the point of diversion used for the Project; and (f) A request for comments on the proposed conversion, including the date by which comments must be received. (2) The Department shall provide a copy of the notice to the Holder and publish the notice in the Department’s weekly notice publication with information about how interested persons may comment, obtain future notices about the proposed conversion, or obtain a copy of the final proposed order. (3) If the Hydroelectric Water Right is not Subordinated to Other Existing Water Rights as of October 23, 1999, then the notice shall provide a 30 calendar day opportunity for any interested person to propose Mitigation Measures to avoid Injury and to ensure the Continuation of Authorized Water Uses. (4) At the discretion of the Director, if the Hydroelectric Water Right was Subordinated to Other Existing Water Rights as of October 23, 1999, then the first public notice may be given at the time of the proposed final order describing the conversion to an Instream Water Right under OAR 690-054-0040 to 690-054-0050. Statutory/Other Authority: ORS 536.027 Statutes/Other Implemented: ORS 543A.305 History: WRD 2-2022, adopt filed 07/14/2022, effective 07/14/2022
690-054-0050 Notice of Proposed Final Order (1) The proposed final order shall be: (a) Distributed to the Holder and to all individuals, including all governmental entities, who have filed timely comments with the Department; and (b) Published in the Department’s weekly notice publication. (2) The proposed final order shall specify that all protestants have 60 calendar days from the date of the notice to file a protest. Statutory/Other Authority: ORS 536.027 Statutes/Other Implemented: ORS 543A.305 History: WRD 2-2022, adopt filed 07/14/2022, effective 07/14/2022
690-054-0070 Time and Place of Hearings, Exceptions, Final Order (1) The conduct of contested hearings shall be as provided in OAR 137-003-0501 to 137-003-0700. (2) If the proposed conversion is referred for a contested case hearing, a proposed order shall be issued by the Administrative Law Judge (ALJ) after the hearing. Any party to the contested case hearing may file exceptions to the ALJ’s proposed order. Exceptions must be filed with the Department within 30 calendar days of the order. If no exceptions are filed to the ALJ’s proposed order within 30 calendar days, the Director shall issue a final order consistent with section (4). (3) If exceptions are filed to the ALJ’s proposed order, the Director may review or hear argument, either written or oral, and make the final determination for the final order. (4) If, after the contested case hearing or, if a hearing is not held, after the close of the protest period as defined in OAR 690-054-0050, the Director determines the proposed conversion would not comply with ORS 543A.305 and OAR Chapter 690 Division 54, the Director shall: (a) Issue a final order denying the conversion to an Instream Water Right; or (b) Modify the proposed order to comply with ORS 543A.305 and OAR Chapter 690 Division 54, and issue a final order approving the conversion to an Instream Water Right. (5) If, after the contested case hearing or, if a hearing is not held, after the close of the protest period as defined in OAR 690-054-0050, the Director determines the proposed conversion would comply with ORS 543A.305 and OAR Chapter 690, Division 54, the Director shall issue a final order approving the conversion to an Instream Water Right. (6) A final order may set forth any of the provisions or restrictions to be included in the Instream Water Right. Statutory/Other Authority: ORS 536.027 Statutes/Other Implemented: ORS 543A.305 History: WRD 2-2022, adopt filed 07/14/2022, effective 07/14/2022
690-054-0080 Issuance of Instream Water Right Certificate After the Director issues a final order approving the conversion of a Hydroelectric Water Right to an Instream Water Right, the Department shall issue a certificate for an Instream Water Right. Each Instream Water Right is allocated individually and shall not be additive to other Instream Water Rights. The certificate shall be in the name of the Department as trustee for the people of the State of Oregon. A certificate for an Instream Water Right supplied by stored water shall describe the reservoir. Statutory/Other Authority: ORS 536.027 Statutes/Other Implemented: ORS 543A.305 History: WRD 2-2022, adopt filed 07/14/2022, effective 07/14/2022
690-076-0005 Purpose Establishment of minimum perennial streamflows is a high priority of the Water Resources Commission and Water Resources Department. Minimum perennial streamflows are established as administrative rules to support fish and aquatic life or minimize pollution. Minimum streamflows are included in applicable basin program statements. These rules include the definitions, standards, process and criteria for the evaluation of minimum perennial streamflow applications submitted by the Department of Fish and Wildlife or the Department of Environmental Quality to the Water Resources Commission under the provisions of ORS 536.325. Statutory/Other Authority: ORS 183 & 536 History: WRD 4-1986, f. & ef. 4-28-86 WRD 2-1984, f. & ef. 6-25-84 WRD 7-1983(Temp), f. & ef. 11-15-83
690-076-0010 Definitions The following definitions apply to OAR 690-076-0005 to 690-076-0035. (1) “Affected Local Government” means any local government as defined in OAR 690-005-0015, within whose jurisdiction a minimum perennial streamflow is proposed or established. (2) “Basin” means any one of the major drainage areas identified by the Commission for program planning and management purposes. Basin boundaries are identified on Water Resources Department map 0.6. (3) “Classification” means the designation in basin programs of allowed and preferred beneficial uses of a specified water source as provided in ORS 536.340. A classification may also reserve quantities of water for preferred beneficial uses. (4) “Commission” means Water Resources Commission. (5) “Department” means Water Resources Department. (6) “Director” means Water Resources Director. (7) “Minimum Perennial Streamflow,” also minimum streamflow, means an administrative rule that establishes a flow necessary to support aquatic life or minimize pollution. The rule includes a priority date and specifies streamflow levels for all or any period of the year. It establishes priority for instream use over future appropriations and identifies flow objectives for future management in streams where shortages occur. The Commission will assume minimum streamflow levels are most appropriate for support of aquatic life if the flows are the lowest level which, if maintained, would support a population of key fish species consistent with the management objectives of Oregon Department of Fish and Wildlife. The Commission will assume minimum streamflow levels are most appropriate for minimizing pollution if the flows are the lowest level which, if maintained, would assure that projected loading levels from adequately treated wastes and best management practices for non-point sources would not result in violation of water quality standards of the Department of Environmental Quality. (8) “Planned” means a determination has been made for a specific course of action either by administrative or budgetary action of a public body or by engineering, design work, investment toward construction or application for a development permit from the private sector. (9) “Potential” means an option which could reasonably occur in the future but is not planned. A feasibility determination may or may not have been completed, but the option has not been ruled out. (10) “Subbasin” means any subarea of a basin defined by surface drainage patterns such as the drainage basin of any tributary, or the area draining to any point on a river, or draining between two points on a river. (11) “Withdrawal” means an administrative rule prohibiting all new appropriations for particular uses from a source for part or all of the year as provided in ORS 536.410. A withdrawal can be set for a prescribed length of time or indefinitely until modified or revoked by the Commission. Statutory/Other Authority: ORS 183, 197 & 536 History: WRD 12-1990, f. & cert. ef. 8-8-90 WRD 4-1986, f. & ef. 4-28-86 WRD 7-1985, f. & ef. 7-10-85 WRD 2-1984, f. & ef. 6-25-84 WRD 7-1983(Temp), f. & ef. 11-15-83
690-076-0015 Effect of Minimum Perennial Streamflows (1) Except for those uses exempted by a minimum streamflow, use of water under a permit or right with priority date later than the priority date of an established minimum streamflow will not be allowed when flows are below the minimum streamflow level. Use of water under rights and permits with priority dates earlier than the minimum streamflow is not affected. Nothing in these rules is intended to affect the preference for human and livestock consumption under ORS 536.310(12). (2) The priority date of minimum streamflows established as the result of action on an application by Oregon Department of Fish and Wildlife or Oregon Department of Environmental Quality is the date of application. When an existing minimum streamflow is modified, the earlier minimum streamflow priority date remains in effect for the previous amount or the level of the modified minimum streamflow, whichever is less. Statutory/Other Authority: ORS 183 & 536 History: WRD 4-1986, f. & ef. 4-28-86 WRD 2-1984, f. & ef. 6-25-84 WRD 7-1983(Temp), f. & ef. 11-15-83
690-076-0025 Information Base (1) The Department and Commission shall consider the following information to the extent available, when evaluating applications: (a) Items of information listed in OAR 690-076-0018(2) through (5); (b) Water permits and rights of record and information pertaining to actual use of water; (c) Existing instream uses; (d) Stream gage records or estimates of flow; (e) Existing water supply and water quality problems; (f) Water needs for existing and planned beneficial uses and seasonal characteristics of water demands; (g) Sources of water supply in the subbasin considering: groundwater, surface water, planned actions or potential for developing storage sites, conserving water, enhancing riparian zones and enhancing watershed yield; (h) Basin water use programs; (i) Statutory and administrative restrictions on water use; (j) Acknowledged comprehensive land use plans; (k) Benefits and values from existing and planned uses of surface water in the subbasin; (l) Benefits and values of potential water uses. (2) The Department and Commission may make reasonable assumptions or estimates for information when specific data are not readily available. Any assumptions or estimates used shall be stated for public review and may include but shall not be limited to: (a) Monthly and annual runoff characteristics; (b) Major sources of inflow to the stream; (c) Characteristics of existing water use including frequency of use, evaporation and transpiration, opportunity for conservation and effects of use on streamflows; (d) Potential sources of water supply; (e) Amounts of water needed to supply potential beneficial water uses; (f) Impact of land use and development on streamflow. (3) The Commission will determine the adequacy of water supply at a minimum flow location for satisfying existing, planned and potential instream and out-of-stream uses. The Commission will consider the existing streamflow pattern. If there are shortages, the Commission will consider the plans and potential for developing supplies for both instream and out-of-stream needs. The Commission will only consider ground water a separate source if use is not likely to affect streamflow levels and is not in a critical groundwater area. Interbasin transfers may be considered as an additional water supply only if a project has been planned or constructed. The Commission will consider whether planned or potential out-of-stream use could reasonably be served by sources other than natural flow during periods of shortage. If the uses require natural flow, the Commission will evaluate the importance of the planned uses and both the importance and likelihood of potential uses. Statutory/Other Authority: ORS 183 & 536 History: WRD 4-1986, f. & ef. 4-28-86 WRD 2-1984, f. & ef. 6-25-84 WRD 7-1983(Temp), f. & ef. 11-15-83
690-076-0035 General Provisions and Policies (1) The Commission may identify potential water storage sites needed to encourage, promote and secure the maximum beneficial uses and control of the water resources under consideration in the evaluation of a minimum perennial streamflow. The Commission may reserve by classification specific quantities of water to assure supplies sufficient to meet future storage development requirements and minimum streamflows. (2) In addition to the proposed action on the minimum perennial streamflow application the Commission may propose and consider at the same hearing, classification or reclassification of streams, withdrawal of waters from further appropriation, or amending basin water use programs. The supplemental actions under consideration shall either contribute to the objectives of supporting aquatic life and minimizing pollution or preserving water supply for a use that is found to be more important than the purpose of the minimum streamflow. Statutory/Other Authority: ORS 183 & 536 History: WRD 4-1986, f. & ef. 4-28-86 WRD 2-1984, f. & ef. 6-25-84 WRD 7-1983(Temp), f. & ef. 11-15-83
690-077-0000 Purpose (1) The purpose of this Division is to establish the policy, procedures, criteria, standards and definitions which shall be applied by the Department and Commission in the evaluation of applications for establishing instream water rights. (2) This Division also provides for the conversion of existing minimum streamflows to instream water rights; for the instream transfer or lease of existing water rights for use as instream water rights; and for the enforcement of instream water rights which are held in trust by the Water Resources Department to protect the public uses. (3) In 1987, the Legislature created a new type of water right called an instream water right. Instream water rights are established by certificate from the Water Resources Commission or by an order approving a time-limited instream transfer or lease, pursuant to ORS 537.332 to 537.360, to maintain and support public uses within natural streams and lakes. These public uses include, but are not limited to, recreation, scenic attraction, aquatic and fish life, wildlife habitat and ecological values, pollution abatement and navigation. Instream water rights may also be established as a result of the allocation of conserved water under 537.455 to 537.500 and 540.510 (OAR chapter 690, division 18). (4) In 2001, the Legislature authorized the split season use leasing of water rights for instream purposes. Under ORS 537.348(3), all or a portion of an existing water right may be used for the existing use and for instream use during the same year, provided that the uses are not concurrent and that the holders of the water rights measure and report to the Water Resources Department the use of the existing water right and the instream water right. (5) Instream water rights differ from other water rights because control or diversion of the water is not required. Instream water rights are held in trust by the Water Resources Department but are regulated and enforced like all other water rights. (6) Instream water rights do not take away or impair any legally established right to the use of water having an earlier priority date than the instream right. Statutory/Other Authority: ORS 536.025, 536.027, 536.220, 536.300, 536.310, 537.338 & 537.356 - 537.358 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 WRD 5-1995(Temp), f. & cert. ef. 8-4-95 WRD 1-1995, f. & cert. ef. 2-14-95 WRD 9-1992, f. & cert. ef. 7-1-92 WRD 20-1988, f. & cert. ef. 11-4-88
690-077-0019 State Agency Instream Water Right Applications: Process for Instream Water Right Certificate Requests (1) Except as provided in ORS 537.343, the Department shall process a request received under 537.336 for a certificate for an instream water right in accordance with the provisions for obtaining a permit to appropriate water under 537.140 to 537.250, and the policies under 537.332 to 537.360. (2) Nothing in ORS 183.310 to 183.550 shall be construed to allow additional persons to participate in the process. To the extent that any provision in 183.310 to 183.550 conflicts with a provision in 537.120 to 537.360, the provisions in 537.120 to 537.360 shall control. (3) Pursuant to Section 46, Chapter 416, Oregon Laws 1995, for each application described under OAR 690-077-0000 that was pending or filed with the Commission or the Department on June 30, 1995, the Department shall determine an appropriate step in the process established in Chapter 416, Oregon Laws 1995 and this division at which to continue the application process for the application. The definitions and provisions of this division shall be applied as appropriate, to reflect the step determined by the Department. Statutory/Other Authority: ORS 536.025, 536.027, 537.140 - 537.250 & 537.332 - 537.360 Statutes/Other Implemented: ORS 537.332 - 537.360 History: WRD 4-2006, f. & cert .ef. 10-2-06 WRD 1-1996, f. & cert. ef. 1-31-96
690-077-0027 Application Processing: Completeness Review (1) Within 15 days after receiving an application, the Department shall determine whether the application contains the information required under OAR 690-077-0020(4) and is complete and not defective. If the Department determines that the application is incomplete or defective, the Department shall return the application. (2) Upon determining that an application contains the information listed under OAR 690-077-0020(4) and is complete and not defective, the Department shall endorse on the application the date upon which the application was received for filing at the Department, which shall be the priority date for any water right issued in response to the application. All applications that comply with the provisions of law shall be recorded in a suitable book kept for that purpose. (3) If an application is complete and not defective, the Department shall determine whether the proposed use is prohibited by ORS Chapter 538. If the proposed use is prohibited by ORS Chapter 538, the Department shall reject the application and return the application with an explanation of the statutory prohibition. Statutory/Other Authority: ORS 537.150 & 538 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