(1) If a contested case hearing is conducted under ORS 543A.120, the issues to be considered in the contested case hearing shall be limited to issues identified by the administrative law judge.
(2) Notwithstanding the provisions of ORS chapter 183 pertaining to contested case proceedings, the parties to any contested case hearing initiated under this section shall be limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under ORS 543A.120 and who requests to intervene in the contested case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in accordance with the applicable provisions of ORS chapter 183 except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be allowed.
(4) Each person submitting a protest or a request for standing 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 Water Resources Department an opportunity to respond to the issue precludes judicial review based on that issue.
(5) 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 reauthorization does not comply with the standards set forth in ORS 543A.025 or rules adopted by the Water Resources Commission under ORS 543A.025, the director shall issue a final order rejecting the application or modifying the proposed final order to conform to the public interest. 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 reauthorization complies with ORS 543A.025, the director shall issue a final order approving the application for reauthorization or otherwise modifying the proposed final order. A final order may set forth any of the provisions or restrictions to be included in the certificate 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.
(6) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order, the applicant may request and the department shall schedule a contested case hearing as provided under subsection (3) of this section by submitting the information required for a protest under ORS 543A.120 within 14 days after the director issues the final order. However, the issues on which a contested case hearing may be requested and conducted under this paragraph shall be limited to issues based on the modifications to the proposed final order.
(b) Only the applicant or a protestant may appeal the provisions of the final order in the manner established in ORS chapter 183 for appeal of orders other than contested cases.
(7) Before issuing a final order, the director or the commission, if applicable, shall make the final determination of whether the proposed reauthorization or the proposed reauthorization as modified in the proposed final order complies with the standards set forth in ORS 543A.025.
(8) In a proceeding to reauthorize a water right for a federally licensed project, the final order may be different from the proposed final order based on:
(a) New information developed during the federal relicensing process pertaining to environmental impacts or assessments that reveals impacts not known at the time the proposed final order was issued;
(b) Significant changes in the final application to the Federal Energy Regulatory Commission;
(c) Conditions and restrictions in the Federal Energy Regulatory Commission license that are inconsistent with the water right as proposed in the proposed final order; or
(d) Protests received after the proposed final order is issued.
(9) Upon issuing a final order, the director 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). [1997 c.449 §25; 2003 c.75 §100]
Section: Previous 543A.095 543A.100 543A.105 543A.110 543A.115 543A.120 543A.125 543A.130 543A.135 543A.140 543A.145 543A.150 543A.300 543A.305 543A.400 NextLast modified: August 7, 2008