ORS 537.170: Protest of proposed final order; final order; appeal.

(1) If a protest of a proposed final order issued under ORS 537.153 is filed under ORS 536.077 and, after the contested case hearing or, if a hearing is not held, after the close of the period allowed to file a protest, the Water Resources Director determines that the proposed use does not comply with the standards set forth in ORS 543.017 or rules adopted by the Water Resources Commission under ORS 543.017 or would otherwise impair or be detrimental to the public interest, the director shall issue a final order rejecting the application or modifying the proposed final order to conform to the public interest. (2) If a protest of a proposed final order issued under ORS 537.153 is filed under ORS 536.077 and, after the contested case hearing or, if a hearing is not held, after the close of the period allowed to file a protest, the director determines that the proposed use would not impair or be detrimental to the public interest, the director shall issue a final order approving the application or otherwise modifying the proposed final order. (3) A final order may set forth any of the provisions or restrictions to be included in the permit concerning the use, control and management of the water to be appropriated for the project, including, but not limited to, a specification of reservoir operation and minimum releases to protect the public interest. (4) An interlocutory appeal under ORS 183.480 (3) is not allowed in a contested case proceeding under this section. (5) If a contested case hearing is not held under ORS 537.153 (7)(a) where the final order modifies the proposed final order, the applicant, a person granted party status or a protestant may submit a protest under ORS 536.076 or 536.077 within 14 days after the director issues the final order, except that the issues on which a contested case hearing may be requested and conducted under this subsection are limited to issues based on the modifications to the proposed final order. The department must hold a hearing if the protestant is an applicant. (6) If a protest of a proposed final order issued under ORS 537.153 is filed under ORS 536.077 by a person other than the applicant and, as described in ORS 537.153 (7)(a), the director issues a final order without holding a contested case hearing, a protestant may appeal the provisions of the final order in the manner established in ORS chapter 183 for appeal of orders in other than contested cases. (7) If the presumption of public interest under ORS 537.153 (2) is overcome, then before issuing a final order, the director or the commission, if applicable, shall make the final determination of whether the proposed use or the proposed use as modified in the proposed final order would impair or be detrimental to the public interest by considering: (a) Conserving the highest use of the water for all purposes, including irrigation, domestic use, municipal water supply, power development, public recreation, protection of commercial and game fishing and wildlife, fire protection, mining, industrial purposes, navigation, scenic attraction or any other beneficial use to which the water may be applied for which it may have a special value to the public. (b) The maximum economic development of the waters involved. (c) The control of the waters of this state for all beneficial purposes, including drainage, sanitation and flood control. (d) The amount of waters available for appropriation for beneficial use. (e) The prevention of wasteful, uneconomic, impracticable or unreasonable use of the waters involved. (f) All vested and inchoate rights to the waters of this state or to the use of the waters of this state, and the means necessary to protect such rights. (g) The state water resources policy formulated under ORS 536.295 to 536.350 and 537.505 to 537.534. (8) Upon issuing a final order, the director shall notify the applicant and each person who submitted written comments or protests or otherwise requested notice of the final order and send a copy of the final order to any person who requested a copy and paid the fee required under ORS 536.050 (1)(p). [Amended by 1955 c.707 §36; 1961 c.224 §12; 1963 c.378 §1; 1975 c.581 §26; 1985 c.569 §19; 1985 c.673 §30; 1995 c.416 §13; 1997 c.587 §6; 2003 c.75 §96; 2025 c.575 §6]