OAR 690-380-5050: Consent to Injury of Instream Water Rights

(1) Following the issuance of an initial review pursuant to OAR 690-380-4000, if the applicant notifies the Department that the applicant intends to request consent to injury to an instream water right resulting from a change in point of diversion or appropriation as outlined in OAR 690-380-4000(8)(b), the Department shall seek a recommendation on whether to consent or not consent from the agency that requested the instream water right. (2) In requesting a recommendation under section (1) of this rule, the Department shall provide to the appropriate agency a copy of the initial review issued under OAR 690-380-4000 or proposed order issued after hearing and, to facilitate the analysis of cumulative impacts, identify any previously approved transfers injuring the same instream water right as the proposed transfer. (3) If the agency that requested the instream water right recommends that the Department consent to injury, the agency’s recommendation shall be in writing and include: (a) A description of the extent of the injury to the instream water right; (b) A description of the effect of the injury on the resource; (c) An evaluation of the net benefit that will occur as a result of the proposed change that includes an analysis of the cumulative impact of any previously approved changes that injured the instream water right; and (d) Any proposed conditions necessary to ensure that the proposed change will be consistent with the recommendation. (4) On receipt of a recommendation to consent to injury that complies with section (3) of this rule, the Department shall: (a) Provide notice of the opportunity to comment on the recommendation: (A) To the applicant, persons who filed comments under OAR 690-380-4005, and affected Indian Tribes; and (B) By publication in the Department’s weekly notice; and (b) Seek to consult with affected Indian Tribes pursuant to ORS 540.530(1)(d)(A). (5) Within 30 days after the date of the notice required in section (4) of this rule, any person may submit written comments on the recommendation or a written request for a public meeting to review the recommendation. (6) The Department shall provide copies of any comments submitted in response to the notice in section (4) of this rule to the recommending agency. (7) Within 90 days of receipt of a written request for a public meeting on the recommendation, the Department and the agency providing the recommendation shall hold a joint public meeting to review the recommendation and to receive public comments. (8) If no comments or requests for a public meeting to review the recommendation are received by the Department in response to the notice provided under section (4) of this rule or if, after consideration of any written comments or the discussions during the public meeting described in section (7) of this rule or Tribal consultation in subsection 4(b), the recommending agency notifies the Department that it will not withdraw its recommendation to consent to injury, the Department may issue a proposed final order recommending approval of the transfer and consent to the injury to the instream water right. The proposed final order shall, in addition to the considerations and approval criteria outlined in OAR 690-380-4010, include: (a) Findings on the extent of the injury to the instream water right and the effect on the resource; (b) Findings on the net benefit that will occur as a result of the change that reflect an analysis of the cumulative impact of any previously approved changes that injured the instream water right; and (c) Any conditions necessary to ensure that the change will be consistent with the findings and will result in a continued net benefit to the resource consistent with the purposes of the instream water right.