OAR 690-078-0090: Processing an Application for Use of Water in Chemical Process Mining

(1) The Director shall provide notice of all applications received for water use permits for chemical process mining on the Department’s weekly mailing list pursuant to OAR 690-011-0080(1). (2) The Department shall not begin deliberating on whether to issue a permit until DOGAMI receives a complete consolidated application and appropriate fee. All information required under OAR 690-078-0030 to 690-078-0080 shall be included as part of the consolidated application. (3) DOGAMI is responsible for conducting a public hearing under Section 15(1) of Chapter 735, 1991 Session Laws, when the technical review team indicates that agencies are ready to begin preparing draft permits: (a) At the conclusion of the public hearing, the Department shall assist DOGAMI in determining whether the consolidated application is complete; (b) The Department shall begin the permitting process and preparation of draft permits when DOGAMI declares the consolidated application to be complete and issues a notice to proceed; (c) If the applicant is not required by the Department to provide additional information as suggested at the public hearing or during the comment period on the consolidated application, the Department shall prepare a written response explaining why the additional information was not requested; (d) The Department may continue to process the application while waiting for any required additional information. (4) The Director shall review all applications for chemical process mining to determine if the proposed use: (a) Complies with Water Resources Commission policies, rules and basin programs; (b) Does not harm vested and inchoate rights; (c) Appropriates waters likely to be available in the amount and at the times needed; (d) Is not the subject of a request for review by a public agency or person; (e) Is allowable under the comprehensive plans of affected local governments, and if applicable local land use approvals have been received or are pending based upon the land use information submitted pursuant to OAR 690-078-0040(7) and 690-078-0050(5), or other input from the affected jurisdiction(s); (f) Does not raise any substantial public interest issues. (5) If subsections (4)(a) through (f) of this rule are satisfied, the Director shall prepare a draft permit. (6) If one or more of subsections (4)(a) through (f) of this rule is not satisfied, the Director shall work with the applicant and any person or agency raising the concern to determine whether the issues can be resolved through mutually agreeable conditions, provisions of the permit, or modifications of the application. (7) If the issue cannot be resolved through negotiation, the Director shall prepare a denial document or draft a permit based on information in the file and the Department’s policies, rules and basin programs. (8) In the event of a land use dispute, as defined in OAR 690-005-0015 (Definitions), the Commission or Director shall follow procedures provided in 690-005-0040 (Resolution of Land Use Disputes). (9) The Department shall provide a draft permit with conditions or a denial document to the Department of Geology and Mineral Industries within 225 days from the date the consolidated application and environmental evaluation is determined to be complete: (a) The Department shall include a written explanation of any condition that is inconsistent with the environmental evaluation; (b) The explanation shall set forth the findings of the agency that support the conditions set forth in the draft permit; (c) The permit shall be conditioned such that additional conditions may be added when a water right certificate is issued. (10) The Director and Commission shall address the requirements of OAR 690-005-0045 (Standards for Goal Compliance and Compatibility with Acknowledged Comprehensive Plans) in evaluating and taking action on permit applications. (11) Based upon information received at the consolidated public hearing held by DOGAMI (Section 19(2), Chapter 735, 1991 Session Laws), the Department shall, within 45 days after the hearing or any timeline set by a federal agency (whichever is earlier), approve, deny, or modify the permit with appropriate changes or conditions. (12) The applicant or any person who testified at the consolidated public hearing may, within 30 days from the date the permit was issued, file with DOGAMI a written request for a contested case hearing: (a) The water use permit shall be suspended until completion of the hearing process; (b) Each permitting agency whose permit was appealed may appoint a hearings officer to participate in the hearing or with consent of all agencies, DOGAMI may appoint a single hearings officer; (c) The appropriate hearings officer shall prepare a proposed order for each contested permit; (d) A party may file with the Department written exceptions to a proposed order on a water use permit; (e) If the Department determines that additional information may be included in the record, the proposed order shall be returned to the appropriate hearings officer for further consideration; (f) After receiving exceptions and hearing argument on the exception, the appropriate hearings officer shall adopt as a final order the proposed order or issue a new order. (13) Proceedings for review of the issuance or denial of a permit is with the Supreme Court. The petition shall be filed within 60 days following the date the permit is issued or denied. Filing the petition for review shall stay the permit during judicial review for a period of up to six months. The Supreme Court can extend the stay. (14) The Department shall take final action on the permit within one year from the date of the notice to proceed as referenced in OAR 690-011-0080(3)(b). This may be postponed with agreement of the applicant.