OAR 690-350-0030: ASR Under ASR Permit

(1) ASR Permit Required. On-going authorization to store and recover water injected into an aquifer requires an ASR permit. Only after completion of an ASR testing program under a limited license may an applicant apply for a permanent ASR permit. (2) Water Right before ASR Permit. A person shall possess a water right or have a water right holder agreement which allows use of a water right for the injection source water before applying for an ASR permit. This water right shall be either a permit or certificate. (3) Pre-application Conference. The Department requires at least one pre-application conference with a prospective permittee prior to filing an ASR permit application. The purpose of the conference is to discuss the ASR testing results, information needed for the application, and possible constraints on a project. The conference may serve as a point of review for the apparent adequacy of the applicant’s hydrogeologic and other information. The Department shall invite personnel from both the DEQ and HD to the conference. (4) Permit Application. A request for an ASR permit shall be submitted on a form provided by the Department. The application shall consist of the following: (a) Information on, and Attachments to, the Form: (A) Name, address and telephone number of the applicant; (B) The proposed source for injection water, maximum diversion rate, maximum injection rate at each well(s), maximum storage volume, maximum storage duration, and maximum withdrawal rate at each well(s); (C) Identification of Water Right for Injection Source Water. The water right(s) for which the ASR permit is sought; (D) Water Right Holder Agreement. If the applicant is not the holder of the water right for the proposed ASR project as cited in paragraph (C) of this subsection, a statement from the water right holder shall indicate permission for use of the water for ASR; (E) Limited License(s) Used for Testing. The limited license which was issued to perform the ASR testing necessary for this application; (F) Legal Land Use. Evidence that land use and development approval from a local government is obtained or unnecessary; (G) Map. The map submitted with the ASR application shall be prepared by a certified water right examiner and meet the following criteria: (i) The application map, which is made part of the record, shall be of permanent quality and drawn with sufficient clarity so as to be easily reproduced; (ii) The map shall be drawn on vellum or mylar except that maps measuring 11" x 17" or smaller may be prepared on good-quality paper. The map shall be drawn to a standard, even scale of not less than 4 inches = one mile. A small area map may be more easily and clearly drawn to a larger scale, such as one inch = 400 feet; (iii) The map shall show clearly the location of each injection source water diversion point, or well, by reference to a recognized public land survey corner. The locations may be shown by distance and bearing or by coordinates (distance north or south and distance east and west from the corner); (iv) The map shall show clearly the location of main canals, ditches, pipelines, or flumes which are used to transport injection source water to the injection well(s); (v) The map shall show clearly the location of the well(s) where water is to be injected; (vi) The map shall show clearly the location of the well(s) where water is to be recovered; (vii) The map shall show clearly the location of observation well(s); (viii) The map shall show clearly other topographical features such as roads, streams, railroads, etc., which may be helpful in locating the diversion points in the field; and (ix) The map shall show clearly the scale to which the map is drawn, the section number, township, and range, and a North directional symbol. (H) Applicants that are public supply systems as defined by the Health Division (OAR 333-061-0020(68)) shall acknowledge the need to comply with the Health Division’s plan submission and review requirements (OAR 333-061-0060); (I) Other Information. Any other information required by the Department. (b) Supplemental Reports: (A) Proposed ASR Operations. A detailed description of proposed ASR operations shall include a description of the proposed manner of ASR operations including injection rates specific to each well, water storage volumes, injected water storage durations, recovery rates at each well, water level monitoring including a quality assurance and quality control plan, water quality sampling, contingency plan for use of recovered water if the intended use isn’t possible and reporting. (A licensed professional will be required to develop this information as required by Oregon Law); (B) Proposed System Design. The proposed system design package shall include well construction information for any injection, recovery, observation and source wells, the wellhead assembly, piping system for injection and recovery, and other conceptual design components of the system. (A licensed professional will be required to develop this information as required by Oregon Law); (C) Test Report. The results of testing under the limited license, including: (i) Quality of Injection Source Water. Test results of the quality of the injection source water as required in the test plan proposal under the limited license; (ii) Quality of Receiving Aquifer Water. Test results of the quality of the aquifer water as required in the test plan proposal under the limited license; (iii) Quality of Recovered Water. Test results of the quality of the recovered aquifer water as required under the limited license; (iv) Groundwater Information. Hydrogeologic information shall include the local geology, a conceptual hydrogeologic model, a description of the aquifer targeted for storage, estimated flow direction and rate of movement, allocation of surface water, springs or wells within the area affected by ASR wells, rationale for estimating the affected area, anticipated changes to the groundwater system due to the proposed ASR project, potential natural resource problems of testing, and other information on groundwater and surface water conditions for basing recovery estimations. (A licensed professional will be required to develop this information as required by Oregon law. (ORS 672.505–705)); (D) Comments on Source Water/Standards. The applicant shall address the following situations as they apply: (i) If a constituent that is regulated under OAR 333-061-0030 (ORS 448.131 and 448.273) or OAR 340-040 (ORS 468B.165) is detected in the source water, the applicant shall demonstrate that there are not other sources of water available to the applicant which would be satisfactory for injection and lower in the constituent of concern. Other sources are limited to those for which the applicant has water rights; (ii) If a constituent is detected in the source water above 50% of the levels established under OAR 333-061-0030 (ORS 448.131 and 448.273) or OAR 340-040 (ORS 468B.165), the applicant shall install a treatment method, system or other alternative method to reduce the constituent to less than 50% of those levels, unless the applicant can show that there is not a treatment method, system or other alternative method that will reduce the level of a contaminant below the 50% level, or the lesser of: (I) The applicant can show that it would be more costly to provide the treatment method, system or other alternative method necessary than to obtain the same amount of stored water from the next cheapest feasible water supply alternative; or (II) In the case of a drinking water system the applicant can show the cost of adding the treatment method, system or other alternative method increases the cost per household of providing water (including operation, maintenance, and debt service for prior water projects) above 1.5% of the median household income of the community. (iii) Notwithstanding paragraph (4)(b)(D)(ii) of this rule, in the event the applicant cannot reduce a constituent to less than the 50% level, the applicant shall minimize the constituent level by providing the level of treatment available or other alternative method which for the same amount of stored water is not as costly as either the next cheapest water supply alternative or an amount equal to that necessary to increase the cost per household of providing water to 1.5% of the median household income of the community, whichever is less; (iv) Notwithstanding the provisions of paragraph (4)(b)(D)(i), (ii), and (iii) of this rule and after consulting with the DEQ and the HD, the Department may determine that the circumstances are such that an alternative source, treatment method, system, or other alternative method is acceptable or not necessary. (c) Other Information. Any other information required by the Department. (5) Permit Application Processing: (a) Review of Application for Completeness. Within 45 days after an individual submits or resubmits an application, the Department shall consult with DEQ and HD about the completeness of the application, determine the completeness of the application, and either: (A) Notify the applicant that it is complete for purposes of evaluation; or (B) Notify the applicant of what additional information is required before the application is resubmitted. (b) Public Notice/Comment Period. Within 7 days after determining that an application is complete, the Department shall provide public notice of the request to the public in the same manner as is used for water use applications. The appearance in the public notice commences a 60-day public comment period for the application. The Department may require additional information from the applicant pursuant to its own concerns and those raised by the public comments; (c) DEQ and HD Assistance. The Department shall rely on the DEQ and the HD to comment on and recommend conditions for the permit and shall provide the public notice and a copy of the complete application to those agencies at the opening of the comment period; (d) Scope of Public Interest Review. When making a public interest determination, the Department shall receive comments from interested parties or agencies for consideration of permit issuance, proposed conditions, and limitations. The public interest review standards shall apply only to the matters raised by the ASR permit application, not to the water right for injection source water; (e) Referral to Commission. In the discretion of the Director, the Director may refer policy matters raised by the ASR application to the Commission for decision; (f) Proposed Final Order. After considering comments and/or recommendations specific to the proposed ASR project during the 60-day public comment period, the Director shall issue a proposed final order on the application. The proposed final order shall be mailed to the applicant, commenting agencies, and commentors. Notice of the proposed final order shall be given in the weekly notice published by the Department; (g) Protests: (A) The Department shall allow a 45-day protest period, starting when the proposed final order is noticed in the public notice; (B) Protests may be filed by any person objecting to the proposed issuance of a permit, and by any applicant objecting to proposed permit conditions; (C) Protests shall be in the form and manner specified in OAR 690, division 2. (h) Director’s Action on the Application. After the close of the protest period and after consideration of any protest filed, the Director may: (A) Issue the permit with proper conditions upon finding that: (i) The proposed ASR project will not impair or be detrimental to the public interest; and (ii) There is a water right for injection source water. (B) Propose to deny the application and refer to contested case hearing upon finding that the ASR project will impair or be detrimental to the public interest; (C) Offer the applicant and protester(s) the opportunity to engage in discussions to try and resolve issues of concern; (D) Refer to contested case hearing to consider protests against approval of the application or protests against proposed permit conditions; or (E) Refer the application to the Commission to address policy matters raised by the application. (i) The Department shall send a copy of the final order to commentors and protesters. (6) Permit Conditioning. The following conditions shall be placed on the ASR permit: (a) Injection/Storage/Recovery. The permit will specify the maximum allowable injection rate at each well, the maximum allowable storage volume, the maximum storage duration and the maximum allowable recovery rate at each well. These maximum values shall substantially reflect those amounts which were successfully demonstrated under the limited license; (b) Record of Use. The permittee shall maintain a record of injection and recovery, including the total number of hours of injection and recovery and the total metered quantity injected and recovered. The record of use may be reviewed by Department staff upon request; (c) Permit Modification/Revocation. The Department shall notify the permittee in writing when the Director either considers modifying or revoking the permit and allow the permittee to respond: (A) The Director may modify the ASR permit for any of the following reasons: (i) To reflect changes in HD and DEQ water quality or treatment standards; (ii) To address needed technological changes as requested by DEQ or HD to minimize constituents regulated under OAR 333-061-0030 (ORS 448.131 and 448.273) or OAR 340-040 (ORS 468B.165); (iii) Upon written request from the permittee for minor adjustments to the authorization in the permit; (iv) Upon written request from the permittee for changes in the limits for the recovery of stored water. Any person operating an ASR project under a permit, upon approval by the Director, may recover up to 100 percent of the water stored in the aquifer storage facility if valid scientific data gathered during operations under the limited license or permit demonstrate that the injected source water is not lost through migration or other means and that groundwater otherwise present in the aquifer has not been irretrievably lost as a result of aquifer storage or recovery. (B) The Director may revoke or modify the ASR permit for any of the following reasons: (i) to prevent or mitigate substantial interference with other water rights, minimum perennial streamflows established prior to the granting of the ASR permit, or aquifer water quality; or (ii) to address any other unintended, injurious effects of the ASR activity. (C) The Department shall offer an additional public comment opportunity consistent with the notice and comment provisions of this rule prior to modifying or revoking the permit. (d) Compliance with Other Laws. The injection of acceptable water into an aquifer(s) under an ASR permit shall comply with all applicable local, state or federal laws; (e) Water Quality Conditions: (A) The ASR permit shall include conditions to minimize, to the extent technically feasible, practical and cost-effective, the concentration of constituents in the injection source water that are not naturally present in the aquifer; (B) Except as otherwise provided in paragraph (6)(e)(C) of this rule, if the injection source water contains constituents regulated under OAR 333-061-0030 (ORS 448.131 and 448.273) or OAR 340-040 (ORS 468B.165) that are detected at greater than 50 percent of the established levels, the aquifer storage and recovery permit may require the permittee to employ technically feasible, practical and cost-effective methods to minimize concentrations of such constituents in the injection source water. The Department, in consultation with DEQ and HD, may set specific limits between 50 and 100% of the established level for constituents regulated under OAR 333-061-0030 (ORS 448.131 and 448.273) or OAR 340-040 (ORS 468B.165) as provided by the standards in (4)(b)(D) of this rule; (C) Constituents that have a secondary contaminant level or constituents that are associated with disinfection of the water may be injected into the aquifer up to the standards established under OAR 333-061-0030 (ORS 448.131 and 448.273); (D) The Department may, based upon valid scientific data, further limit certain constituents in the injection source water if the Department finds that those constituents will interfere with or pose a threat to the maintenance of the water resources of the state for present or future beneficial uses; (E) The permittee shall be in compliance with treatment requirements and performance standards for source waters that fall in categories identified in OAR 333-061-0032; (F) If during the course of ASR operations a constituent which is regulated under OAR 333-061-0030 (ORS 448.131 and 448.273) or OAR 340-040 (ORS 468B.165) is detected above the level prescribed in the permit, the permittee shall stop injection activities and notify the Department. (f) Monitoring/Sampling/Recovery/Reporting: (A) The permit shall include requirements for reporting, sampling and monitoring the ASR project aquifer impacts and for constituents reasonably expected to be found in the injection source water; (B) The permit shall specify limits for the recovery of stored water up to 100 percent. (g) Protection for Existing Users. The ASR permit shall be conditioned to protect existing water rights and the water quality of existing users that rely upon the receiving aquifer and the injection source water; (h) Other Conditions. The permit may contain any other conditions required by the Director to protect the public welfare, health, and safety.