ORS 537.625 Final order; protest; appeal; contents of permit

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 Water Resources Director determines that the proposed use that is the subject of an application filed under ORS 537.615 does not ensure the preservation of the public welfare, safety and health as described in ORS 537.525, the director shall issue a final order rejecting the application or modifying the proposed final order as necessary to ensure the preservation of the public welfare, safety and health as described in ORS 537.525. 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 use would ensure the preservation of the public welfare, safety and health as described in ORS 537.525, the director shall issue a final order approving the application or otherwise modifying the proposed final order. A final order may set forth any of the provisions or restrictions to be included in the permit concerning the use, control and management of the water to be appropriated for the project.

If a contested case hearing is not held under ORS 537.621 (8)(a) where the final order modifies the proposed final order, the applicant, a person that requested party status or a protestant may submit a protest under ORS 536.076 and 536.077 within 14 days after the director issues the final order, except that the issues on which a contested case hearing may be requested and conducted under this subsection are limited to issues that are based on the modifications to the proposed final order. The Water Resources Department must hold a hearing if the protestant is an applicant.

If a protest is filed by a person other than the applicant and, as provided in ORS 537.621 (8)(a), the director issues a final order without holding a contested case hearing, a protestant may appeal the provisions of the final order in the manner established in ORS chapter 183 for appeal of orders in other than contested cases.

If the presumption of public welfare, safety and health under ORS 537.621 (2) is overcome, then before issuing a final order, the director or the Water Resources Commission, if applicable, shall make the final determination of whether the proposed use or the proposed use as modified in the proposed final order would preserve the public welfare, safety and health as described in ORS 537.525 by considering:

The conservation of the highest use of the water for all purposes, including irrigation, domestic use, municipal water supply, power development, public recreation, protection of commercial and game fishing and wildlife, fire protection, mining, industrial purposes, navigation, scenic attraction or any other beneficial use to which the water may be applied for which it may have a special value to the public.

The maximum economic development of the waters involved.

The control of the waters of this state for all beneficial purposes, including drainage, sanitation and flood control.

The amount of waters available for appropriation for beneficial use.

The prevention of wasteful, uneconomic, impracticable or unreasonable use of the waters involved.

All vested and inchoate rights to the waters of this state or to the use of the waters of this state, and the means necessary to protect such rights.

The state water resources policy.

Upon issuing a final order, the department shall notify the applicant and each person who submitted written comments or protests or otherwise requested notice of the final order and send a copy of the final order to any person who requested a copy and paid the fee required under ORS 536.050 (1)(p).

A right to appropriate ground water under a permit has a priority from the date when the application was filed with the department.

If the use of water under the permit is for operation of a mining operation as defined in ORS 517.952:

Review of the application and approval or denial of the application shall be coordinated with the consolidated application process under ORS 517.952 to 517.989. However, such review and approval or denial shall take into consideration all policy considerations for the appropriation of water as set forth in this chapter and ORS chapter 536.

The permit may be issued for exploration under ORS 517.702 to 517.740, but the permit shall be conditioned on the applicant’s compliance with the consolidated application process.

The permit shall include a condition that additional conditions may be added to the use of water when a water right certificate is issued, or when the use of water is changed pursuant to ORS 540.520 and 540.530 to use for a mining operation.