Current through Register Vol. 63, No. 9, September 1, 2024
(1) In order to approve an application for an
extension of time for municipal and quasi-municipal water use permits holders
to complete construction and/or apply water to full beneficial use pursuant to
ORS 537.230 or
537.630, the Department shall
find:
(a) The application is complete,
including the fee specified in ORS
536.050. The Department shall
return any incomplete or deficient applications to the applicant, and shall
specify the deficiency;
(b) The
applicant began actual construction on the project, as defined in
690-315-0020(3)(d), within the time period, if any, required under the
applicable statute;
(c) The time
requested to complete construction or apply water to full beneficial use is
reasonable;
(d) The applicant can
complete the project within the time period requested for the extension; and,
if the request is for more than 50 years that the estimated demand projection
is consistent with the amount and types of lands and uses proposed to be served
by the permit holder;
(e) There is
good cause to approve the extension; and
(f) For the first extension issued after June
29, 2005 for municipal water use permits issued before November 2, 1998:
(A) There are agreements regarding use of the
undeveloped portion of the permit between the permit holder and a federal or
state agency that include conditions or required actions that maintain the
persistence of listed fish species in the portions of waterways affected by
water use under the permit; or
(B)
It is determined that use of the undeveloped portion of the permit will
maintain the persistence of listed fish species in the portions of waterways
affected by water use under the permit; or
(C) If it is determined that use of the
undeveloped portion of the permit would not maintain the persistence of listed
fish species in the portions of the waterways affected by water use under the
permit, the undeveloped portion of the permit is conditioned to maintain the
persistence of listed fish species in the portions of the waterways affected by
water use under the permit.
(2) The Department's finding for municipal
use permits under subsection (1)(f) of this rule shall be based on existing
data and advice of the Oregon Department of Fish and Wildlife (ODFW). The
Department's finding shall be limited to impacts related to streamflow as a
result of use of the undeveloped portion of the permit and further limited to
where, as a result of use of the undeveloped portion of the permit, ODFW
indicates that streamflow would be a limiting factor for the subject listed
fish species.
(a) Except for municipal ground
water permit extension applications where the Department has determined there
is not the potential for substantial interference with surface water under OAR
chapter 690 division 9, the Department shall notify ODFW of each pending
municipal water use permit extension application that is subject to subsection
(1)(f) of this rule and provide at least 60 days for ODFW to respond prior to
issuing a proposed final order under 690-315-0050. The Department may issue a
proposed final order prior to 60 days if comments are received from
ODFW.
(b) Upon notifying ODFW under
subsection (2)(a) of this rule, the Department shall also notify the applicant
and, within 10 days, give public notice in the weekly notice published by the
Department that the municipal permit extension application has been sent to
ODFW for review.
(c) For ground
water permits submitted to ODFW under this rule, the Department shall provide
to ODFW and the applicant the Department's estimate of surface water impacts
that would result from use of the undeveloped portion of the ground water
permit.
(d) ODFW shall provide its
written advice to the Department on the extension application within 60 days of
the Department's notice in subsection (2)(a) of this rule or notify the
Department that additional time, not to exceed 120 days unless the applicant
consents to more time, will be needed to complete its evaluation.
(e) ODFW may recommend to the Department
fishery resource protection conditions for inclusion in the proposed final
order under OAR 690-315-0050 that would provide protection to maintain the
persistence of listed fish species if its written advice to the Department
indicates that:
(A) Use of the undeveloped
portion of the permit would not maintain persistence in the portions of the
waterways affected by water use under the permit; and
(B) As a result of the use of the undeveloped
portion of the permit, streamflow would be a limiting factor for the listed
fish species.
(f) Upon
receiving ODFW's written advice, the Department shall notify the applicant and
any persons that requested notification of any fishery resource protection
conditions that may be proposed in the proposed final order under OAR
690-315-0050. The Department's notice shall also provide the applicant an
opportunity to request the Department place the permit extension application on
administrative hold.
(g) The
Department may place fishery resource protection conditions on the undeveloped
portion of the permit in the extension proposed and final order under
690-315-0050 if the Department finds that, without such conditions, use of the
undeveloped portion of the permit will not maintain, in the portions of
waterway affected by water use under the permit, the persistence of listed fish
species.
(3) The
Department's determination of good cause shall consider:
(a) Whether the applicant has demonstrated
reasonable diligence in previous performance under the permit;
(b) The cost to appropriate and apply the
water to a beneficial purpose;
(c)
The good faith of the appropriator;
(d) The market and present demands for water
or power to be supplied;
(e) The
income or use that may be required to provide fair and reasonable returns on
investment;
(f) Whether other
governmental requirements relating to the project have significantly delayed
completion of construction or perfection of the right; and
(g) Any events over which the water right
permit holder had no control and which delayed development under the
permit.
(4) In
determining reasonable diligence and good faith of the holder of a municipal or
quasi-municipal water use permit, the Department shall consider activities
associated with the development of the right that may include, but are not
limited to: water management planning; conservation planning; development of a
water master plan for the Oregon Health Division; planning of a diversion
system; demand forecasting; flow or water quality monitoring; source
evaluation; entry into intergovernmental agreements for water delivery;
property acquisition; engagement in governmental permitting or project
financing; procurement of planning, design, or construction services;
surveying; and any physical work performed toward completion of the system and
development of the right.
(5) For
municipal and quasi-municipal water use permits issued after November 2, 1998,
in making a determination of good cause pursuant to subsection (3)(d) above, in
addition to subsections (1)(a)-(e), (3), and (4) of this rule, the Department
shall also consider, but is not limited to, the following factors:
(a) The amount of water available to satisfy
other affected water rights and scenic waterway flows;
(b) Special water use designations
established since permit issuance, including but not limited to state scenic
waterways, federal wild and scenic rivers, serious water management problem
areas or water quality limited sources established under
33 U.S.C.
1313(d);
(c) The habitat needs of sensitive,
threatened or endangered species, in consultation with the Oregon Department of
Fish and Wildlife;
(d) Economic
investment in the project to date;
(e) Other economic interests dependent on
completion of the project; and
(f)
Other factors relevant to the determination of the market and present demand
for water and power.
Stat. Auth.: ORS
536.025 &
536.027
Stats. Implemented: ORS
537.230,
537.248,
537.630 &
539.010
