OAR 690-315-0080: Criteria for Department Review of Extension Applications for Municipal and Quasi-Municipal Water Use Permits

(1) In order to approve an application for an extension of time for municipal and quasi-municipal water use permits holders to complete construction and/or apply water to full beneficial use pursuant to ORS 537.230 or 537.630, the Department shall find: (a) The extension application is complete, including the fee specified in ORS 536.050. The Department shall return any incomplete or deficient applications to the applicant, and shall specify the deficiency; (b) The applicant began actual construction on the project, as defined in 690-315-0020(3)(d), within the time period, if any, required under the applicable statute; (c) The time requested to complete construction or apply water to full beneficial use is reasonable; (d) For municipal water use permits, the applicant can complete the project within the time period requested for the extension; and, if the request is for more than 50 years that the estimated demand projection is consistent with the amount and types of lands and uses proposed to be served by the permit holder; (e) There is good cause to approve the extension; and (f) For the first extension issued after June 29, 2005 for municipal water use permits issued before November 2, 1998: (A) There are agreements regarding use of the undeveloped portion of the permit between the permit holder and a federal or state agency that include conditions or required actions that maintain the persistence of listed fish species in the portions of waterways affected by water use under the permit; or (B) It is determined that use of the undeveloped portion of the permit will maintain the persistence of listed fish species in the portions of waterways affected by water use under the permit; or (C) If it is determined that use of the undeveloped portion of the permit would not maintain the persistence of listed fish species in the portions of the waterways affected by water use under the permit, the undeveloped portion of the permit is conditioned to maintain the persistence of listed fish species in the portions of the waterways affected by water use under the permit. (2) The Department’s finding for municipal use permits under subsection (1)(f) of this rule shall be based on existing data and advice of the Oregon Department of Fish and Wildlife (ODFW). The Department’s finding shall be limited to impacts related to streamflow as a result of use of the undeveloped portion of the permit and further limited to where, as a result of use of the undeveloped portion of the permit, ODFW indicates that streamflow would be a limiting factor for the subject listed fish species. (a) Except for municipal ground water permit extension applications where the Department has determined there is not the potential for substantial interference with surface water under OAR chapter 690 division 9, the Department shall notify ODFW of each pending municipal water use permit extension application that is subject to subsection (1)(f) of this rule and provide at least 60 days for ODFW to respond prior to issuing a proposed final order under 690-315-0050. The Department may issue a proposed final order prior to 60 days if comments are received from ODFW. (b) Upon notifying ODFW under subsection (2)(a) of this rule, the Department shall also notify the applicant and, within 10 days, give public notice in the weekly notice published by the Department that the municipal permit extension application has been sent to ODFW for review. (c) For ground water permits submitted to ODFW under this rule, the Department shall provide to ODFW and the applicant the Department’s estimate of surface water impacts that would result from use of the undeveloped portion of the ground water permit. (d) ODFW shall provide its written advice to the Department on the extension application within 60 days of the Department’s notice in subsection (2)(a) of this rule or notify the Department that additional time, not to exceed 120 days unless the applicant consents to more time, will be needed to complete its evaluation. (e) ODFW may recommend to the Department fishery resource protection conditions for inclusion in the proposed final order under OAR 690-315-0050 that would provide protection to maintain the persistence of listed fish species if its written advice to the Department indicates that: (A) Use of the undeveloped portion of the permit would not maintain persistence in the portions of the waterways affected by water use under the permit; and (B) As a result of the use of the undeveloped portion of the permit, streamflow would be a limiting factor for the listed fish species. (f) Upon receiving ODFW’s written advice, the Department shall notify the applicant and any persons that requested notification of any fishery resource protection conditions that may be proposed in the proposed final order under OAR 690-315-0050. The Department’s notice shall also provide the applicant an opportunity to request the Department place the permit extension application on administrative hold. (g) The Department may place fishery resource protection conditions on the undeveloped portion of the permit in the extension proposed and final order under 690-315-0050 if the Department finds that, without such conditions, use of the undeveloped portion of the permit will not maintain, in the portions of waterway affected by water use under the permit, the persistence of listed fish species. (3) The Department's determination of good cause shall consider: (a) Whether the applicant has demonstrated reasonable diligence in previous performance under the permit; (b) The cost to appropriate and apply the water to a beneficial purpose; (c) The good faith of the appropriator; (d) The market and present demands for water or power to be supplied; (e) The income or use that may be required to provide fair and reasonable returns on investment; (f) Whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right; and (g) Any events over which the water right permit holder had no control and which delayed development under the permit. (4) In determining reasonable diligence and good faith of the holder of a municipal or quasi-municipal water use permit, the Department shall consider activities associated with the development of the right that may include, but are not limited to: water management planning; conservation planning; development of a water master plan for the Oregon Health Division; planning of a diversion system; demand forecasting; flow or water quality monitoring; source evaluation; entry into intergovernmental agreements for water delivery; property acquisition; engagement in governmental permitting or project financing; procurement of planning, design, or construction services; surveying; and any physical work performed toward completion of the system and development of the right. (5) For municipal and quasi-municipal water use permits issued after November 2, 1998, in making a determination of good cause pursuant to subsection (3)(d) above, in addition to subsections (1)(a)–(e), (3), and (4) of this rule, the Department shall also consider, but is not limited to, the following factors: (a) The amount of water available to satisfy other affected water rights and scenic waterway flows; (b) Special water use designations established since permit issuance, including but not limited to state scenic waterways, federal wild and scenic rivers, serious water management problem areas or water quality limited sources established under 33 U.S.C. 1313(d); (c) The habitat needs of sensitive, threatened or endangered species, in consultation with the Oregon Department of Fish and Wildlife; (d) Economic investment in the project to date; (e) Other economic interests dependent on completion of the project; and (f) Other factors relevant to the determination of the market and present demand for water and power.