OAR 690-310-0140: Public Interest Review; Groundwater

(1) Before issuing a proposed final order, the Department shall determine whether the presumption under OAR 690-310-0130 is established for the proposed groundwater use, as described in OAR 690-310-0130. (2) If the Department determines that the presumption is not established, the Department shall determine whether the proposed use will impair or adversely affect the public welfare, safety and health under ORS 537.525 and may either: (a) Propose denial of the application upon a finding that the use will impair or adversely affect the public welfare, safety and health; or (b) Make specific findings to demonstrate that even though the presumption is not established, the proposed use will not impair or adversely affect the public welfare, safety and health and propose approval of the application with appropriate modifications or conditions. (3) If the Department determines that the presumption is established or that the proposed use can be modified or conditioned to meet the presumption criteria: (a) The Department shall further evaluate the proposed use, any comments received, information available in its files or received from other interested agencies and any other available information to determine whether the presumption is overcome. The Department may find that the presumption is overcome if a preponderance of evidence shows that the proposed use will not ensure the preservation of the public welfare, safety, and health under ORS 537.525 as demonstrated in comments or a finding of the Department that shows: (A) The specific aspect of the public welfare, safety, and health under ORS 537.525 that would be impaired or detrimentally affected; and (B) Specifically how the identified aspect of the public welfare, safety, and health under ORS 537.525 would be impaired or adversely affected. (b) In making the determination in (3)(a) of this rule, the Department shall, at a minimum, consider the factors listed below, including any potential effects that the proposed use may have on these factors, where applicable: (A) Water use efficiency and the avoidance of waste; (B) Threatened, endangered or sensitive species; (C) Water quality; (D) Fish or wildlife; (E) Recreation; (F) Economic development; (G) Local comprehensive plans, including supporting provisions such as public facilities plans; (H) Stability of groundwater levels; and (I) Thermal characteristics of groundwater source. (c) In making any determination or finding in subsection (3)(a) of this rule, the Department may consult and communicate with state and federal agencies and local governments, as appropriate. (4) If the Department determines that the presumption is established and not overcome under the provisions of section (3) of this rule, the Department shall issue a proposed final order recommending issuance of the permit subject to any appropriate modifications or conditions. If the Department then receives a protest filed pursuant to OAR 690-310-0160, which asserts the presumption is not established or should be overcome, the Department shall evaluate the protest and supporting evidence in accordance with this section and section (5)–(6) of this rule. The Department shall find that the presumption is overcome if a preponderance of evidence shows that: (a) One or more of the four presumption criteria listed in OAR 690-310-0130(1)(a)–(d) are not met; or (b) The proposed use would not ensure the preservation of the public welfare, safety and health, including: (A) The specific aspect of the public welfare, safety and health that would be impaired or detrimentally affected; and (B) Specifically how the identified aspect of the public welfare, safety and health would be impaired or detrimentally affected. (5) If the Department finds under section (4) of this rule that the presumption is overcome, the Department shall issue a final order in accordance with OAR 690-310-0190 denying the application unless the Department makes specific findings to demonstrate that the issuance of a permit will ensure the preservation of the public welfare, safety and health under ORS 537.525. (6) If the Department finds under section (4) of this rule that the presumption is not overcome, the Department shall issue a final order in accordance with OAR 690-310-0190 approving the application with any appropriate modifications or conditions.