Or. Admin. R. 141-085-0575

Current through Register Vol. 63, No. 6, June 1, 2024

Section 141-085-0575 - Permit Appeals

(1) Applicant Appeal Within 21 Calendar Days. An applicant may request a contested case proceeding if they object to an application incompleteness determination, permit decision or permit condition imposed by the Department. The request must be in writing and must be received by the Department within 21 calendar days of the decision.

(2) Other Person Appeal Within 21 Calendar Days. Any person who is aggrieved or adversely affected by the Department's final decision concerning an individual permit or a condition therein may request a contested case proceeding. The request must be in writing and must be received by the Department within 21 calendar days of the decision.

(3) Standing in Contested Case. For a person other than the applicant to have standing to request a contested case, the person must be either "adversely affected" or "aggrieved":

(a) To be "adversely affected" by the Department's individual removal-fill permit decision, the person must have a legally protected interest that would be harmed, degraded or destroyed by the authorized project.

(b) To be "aggrieved" by the Department's individual removal-fill permit decision the person must have participated in the Department's review of the project application by submitting timely written or verbal comments stating a position on the merits of the proposed removal-fill to the Department.

(4) Contents of the Request. The Department has determined that due to the complexity of removal-fill permitting, a general denial of the matters alleged in the request for a contested case proceeding does not provide sufficient information for a fair and efficient contested case and a more specific request is warranted. All requests for a contested case proceeding under this section shall include a specific list of issues for the contested case proceeding. The requester may amend their request to include additional issues or clarify existing issues within 15 days of the date that the case is referred to the Office of Administrative Hearings.

(5) Contested Case Proceeding. If the written request for a contested case proceeding is timely, clearly identifies at least one specific issue, and was made by an eligible person, the matter will be referred to the Office of Administrative Hearings. The contested case will be conducted as follows:

(a) The hearing will be conducted as a contested case pursuant to OAR 137-003-0501 through 137-003-0690 and this rule;

(b) The permit holder and any other persons that are adversely affected or aggrieved that have filed a timely written request for a contested case proceeding will be parties to the proceeding; and

(c) An Administrative Law Judge will conduct a contested case proceeding only on the specific issues clearly identified in the request for contested case proceeding as provided in subsection (4) of this section or in the referral from the Department.

(6) Review of Jurisdictional Determinations. Jurisdictional determinations of the existence, or boundaries, of the waters of this state on a parcel of property, issued more than 60 calendar days before a request for a contested case proceeding are final. Jurisdictional determinations are judicially cognizable facts of which the Department may take official notice under ORS 183.450(3) in removal-fill contested cases. Challenges to jurisdictional determinations are only permitted under the process set out in OAR 141-090.

(7) The Proposed Order. The Administrative Law Judge will issue a proposed order containing findings of fact and conclusions of law. If the request for a contested case proceeding was filed by a person other than the applicant, with a legally protected interest that is adversely affected by the issuance of the permit, the Administrative Law Judge shall issue a proposed order within 20 business days of the evidentiary hearing. Other proposed orders should be issued within 90 calendar days of a ruling that resolves all issues of the evidentiary hearing. As required by ORS 183.460, the proposed order shall provide an opportunity to file written exceptions with the Department.

(8) Amended Proposed Order. The Department may issue an amended proposed order. Any amended proposed order shall provide an opportunity to file written exceptions with the Department.

(9) The Final Order. The Department will consider the record, any exceptions, and enter a final order containing findings of fact and conclusions of law. The final order will rescind, affirm or modify the permit or proposed order. If the request for a contested case proceeding was filed by a person other than the applicant, with a legally protected interest that is adversely affected by the issuance of the permit, the Department shall issue the final order within 45 business days after the evidentiary hearing, if any. All other final orders should be issued within 90 calendar days of the proposed order or amended proposed order.

(10) Pre-Hearing Suspension of Permits. A permit granted by the Department may be suspended by the Department during the pendency of the contested case proceeding. Petitions for suspension must be made to the Department and will be either granted or denied by the Department. The permit will not be suspended unless the person aggrieved or adversely affected by issuance of the permit makes a showing before the Department by clear and convincing evidence that commencement or continuation of the fill would cause irremediable damage and would be inconsistent with ORS 196.800 through 196.990.

(11) Issuance or Denial of a Permit. Interested persons who request notification in writing of the Department's decision on a permit will be notified at the time of issuance or denial. The Department's failure to notify an interested person will not extend any timeframe for a request for a contested case proceeding.

Or. Admin. R. 141-085-0575

DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14

Stat. Auth.: ORS 196.825 & 196.600 - 196.692

Stats. Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990