OAR 141-093-0115: Department Determinations and Considerations in Evaluating Applications to Authorize Projects under a GP

(1) Departmental Final Review. The Department will evaluate the information provided in the application, conduct its own investigation, and consider the comments submitted during the public review process to determine whether or not to issue an authorization under a GP. The Department will render a decision within 40 calendar days of receipt of a complete application, unless otherwise stated in the administrative rules for a specific GP. (2) Extension of Decision Deadline. The applicant may request additional time to respond to comments or to satisfy other requirements. The applicant and the Department may agree to extend the timeline for making a final authorization decision. If no agreement is reached, the Department will make a final authorization decision within the original time period specified in these rules. (3) Effective Date of Review Standards. The Department may consider only standards and criteria in effect on the date the Department receives the complete application or renewal request. (4) Department Determinations. The Department will issue an authorization under a GP if it determines the project described in the application: (a) Has independent utility; (b) Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 through 196.990; (c) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation, when project is on state-owned lands; and (d) Meets the purpose and eligibility requirements in the GP. (5) Department Considerations. In determining whether to issue an authorization under a GP, the Department will consider all of the following: (a) The public need for the proposed fill or removal and the social, economic and other public benefits likely to result from the proposed fill or removal. When the applicant for an authorization under a GP is a public body, the Department may accept and rely on the public body’s findings as to local public need and local public benefit; (b) The economic cost to the public if the proposed fill or removal is not accomplished; (c) The availability of alternatives to the project for which the fill or removal is proposed; (d) The availability of alternative sites for the proposed fill or removal; (e) Whether the proposed fill or removal conforms to sound policies of conservation and would not interfere with public health and safety; (f) Whether the proposed fill or removal is in conformance with existing public uses of the waters and with uses designated for adjacent land in an acknowledged comprehensive plan and land use regulations; (g) Whether the proposed fill or removal is compatible with the acknowledged comprehensive plan and land use regulations for the area where the proposed fill or removal is to take place or can be conditioned on a future local approval to meet this criterion; (h) Whether the proposed fill or removal is for stream bank protection; and (i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill or removal in the manner set forth in ORS 196.800. (6) Alternatives Analysis. The applicant bears the burden of providing the Department with the alternatives analysis used to derive the practicable alternative that has the least reasonably expected adverse impacts on waters of this state. The alternatives analysis must provide the Department all the underlying information necessary to support its considerations under section (5) of this rule. (7) Fills in an Estuary for Non-Water Dependent Use. A “substantial fill” in an estuary is any amount of fill regulated by the Department. No authorizations will be issued for a substantial fill in an estuary for a non-water dependent use unless all of the following apply: (a) The fill is for a public use; (b) The fill satisfies a public need that outweighs the harm, if any, to navigation, fisheries and recreation; and (c) The removal-fill meets all other review standards. (8) Written Findings. In the following cases, the Department will prepare written findings to document a decision for an authorization under a GP: (a) Permit denial; (b) Fill of two acres or more in wetlands; (c) Fill in estuaries (except cable crossings, pipelines, or bridge construction); (d) Removal from estuaries of more than 10,000 cubic yards of material (except for maintenance dredging); (e) Placement of greater than 2,500 cubic yards of riprap in coastal streams or estuaries; (f) Removal-fill in the Oregon Territorial Sea in accordance with Statewide Planning Goal 19-Ocean Resources; and (g) Any permit decision that is contrary to the final decision recommendation of a state agency. (9) Marine Reserves and Marine Protected Areas. The Department will only authorize a removal-fill activity within an area designated by the State Land Board as a marine reserve or a marine protected area if the removal-fill activity is necessary to study, monitor, evaluate, enforce, protect or otherwise further the studying, monitoring, enforcement and protection of the reserve or marine protected area.