Or. Admin. Code § 690-051-0090 - Applications for Minor Projects: Contents, Scope of Evaluation and Application of Standards

(1) An application shall be filed for each minor License or Permit. An application must contain the information in OAR 690-051-0070. No application shall be filed for a project in a designated resource area described in OAR 690 051 0030 without the consent of the managing agency.

(2) The Department shall receive the application together with the filing fee and date stamp the application which will thereafter serve as the priority date of the application. If the application is for an area withdrawn from hydroelectric development by the Commission the application and filing fee may be returned.

(3) The Department may schedule a site visit to the proposed project with other agency representatives. A public hearing shall be held only if the Director deems it in the public interest to do so. The hearing may be limited to specific issues. Notice of the hearing shall meet the requirements specified in OAR 690-051-0130(3). Upon acceptance of a minor hydroelectric application, the following review process shall apply:

(a) Upon filing of a minor hydroelectric application, the Director shall notify the following groups and individuals of the information described in subsection (b) of this section:

(A) Affected local, state and federal agencies, including the planning departments of affected local governments with a request that a copy of said notice be posted in a conspicuous location in the county courthouse;

(B) Property owners within 300 feet of the proposed powerhouse;

(C) Affected Indian tribes; and

(D) All persons on the Department's weekly notice list.

(b) The notice shall include but is not limited to the following information:

(A) Application file number;

(B) Applicant name and address;

(C) Amount of proposed water use;

(D) Common name of water source;

(E) Location of the proposed point of diversion and point of power generation;

(F) Purpose for which the power would be used;

(G) Total amount of power to be developed;

(H) If a pond or reservoir is part of the project, how much water will be impounded.

(c) A 30 day comment period shall commence on the day the Department sends the notice. The notice shall state the date comments must be received by the Department;

(d) Following the comment period, the Department shall prepare a proposed final order with findings to address whether the proposed project together with any recommended measures to protect, mitigate, or enhance the natural resources of the State is consistent with the minimum standards in ORS 543.017 and the requirements in OAR 690 051 0160 through 690 051 0270 and whether the project would impair or be detrimental to the public interest as provided in ORS 543.225. The proposed final order shall include the action proposed to be taken on the minor hydroelectric application;

(e) The proposed final order shall be distributed to the applicant and all individuals, including all governmental agencies, who have filed timely comments with the Department. The report shall state the date by which protests must be received by the Director (60 days from the date it was distributed);

(f) Comments or protests must state facts which support the allegation that the proposed minor hydroelectric use should not be acted upon as proposed by the proposed final order. Upon receiving a protest, the Director shall:

(A) Transmit copies of any protest timely filed to the applicant and all commentors;

(B) Evaluate the protest to determine whether significant issues are raised and if so shall refer the application, with accompanying protest, to the Office of Administrative Hearings (OAH) established under ORS 183.605 to 183.685 for a contested case hearing. If the Director determines the protests do not raise significant issues, the Director shall issue a final order. A final order issued pursuant to this section is a final order in other than a contested case subject to judicial review under ORS 183.484.

(4) If the application 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 days of the order. If no exceptions are filed to the ALJ's proposed order within 30 days, the Director shall issue a final order consistent with subsection (6) below.

(5) If exceptions are filed to the ALJ's proposed order, the Director shall review/hear argument (written or oral, at his/her discretion) and make the final determination for the final order.

(6) 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 not comply with the standards of ORS 543.017 and the requirements of OAR 690-051-0160 through 690-051-0290 or would otherwise impair or be detrimental to the public interest as provided in ORS 543.225, the Director shall issue a final order rejecting the application or modifying the proposed order to comply with ORS 543.017 and the public interest. If, after the contested case hearing the Director determines that the proposed use would comply with the standards of ORS 543.017 and would not impair or be detrimental to the public interest as provided in ORS 543.225, the Director shall issue a final order approving the application or otherwise modifying the proposed order.

(7) A final order may set forth any of the provisions or restrictions to be included in the permit or minor License concerning the use, control and management of the water to be appropriated for the project, including, but not limited to, a specification of reservoir operation and minimum releases to protect the public interest.

(8) If the project is approved a Permit or minor License shall then be issued after any balance due on the application filing fee has been paid.

Notes

Or. Admin. Code § 690-051-0090

WRD 14-1986, f. & ef. 10-13-86; WRD 2-1993, f. & cert. ef. 5-19-93; WRD 8-2015, f. 12-18-15, cert. ef. 1/1/2016

Stat. Auth.: ORS 536.025, 536.027, 537 & 543

Stats. Implemented: