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Oregon Revised Statutes

Or. Rev. Stat. § 537.170 (2026)

Protest of proposed final order; final order; appeal

✓ current as of May 2026
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      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]

Notes of Decisions
Cited in 13 cases (5 in the last 5 years), 1984–2025 · leading case: East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025).
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East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). · cites it 87× “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 539 P.3d 789 (Or. Ct. App. 2023). · cites it 24× “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
Steamboaters v. Winchester Water Control Dist., 688 P.2d 92 (Or. Ct. App. 1984). · cites it 10× “Pursuant to ORS 537.170, District’s application was referred to WPRB.”
Pete's Mountain Homeowners Ass'n v. Oregon Water Resources Dep't, 238 P.3d 395 (Or. Ct. App. 2010). · cites it 4× “ORS 537.170(2). The hearing itself is otherwise conducted according to the provisions of the contested case hearing provisions of the APA.”
Waterwatch of Oregon, Inc. v. Water Resources Comm'n, 88 P.3d 327 (Or. Ct. App. 2004). · cites it 7× “4 Further, after a contested case hearing and the issuance of a final order under ORS 537.170, “any party may file exceptions to the order” with the commission.”
Diack v. City of Portland, 759 P.2d 1070 (Or. 1988). · cites it 7× “170 ([5]a-g), the project proposed in Permit Application 63266 is an allowed use of available water providing increased economic and multiple use benefits through efficiency and diversity of use without detriment to existing rights or the control of the water resource.”
Benz v. Water Resources Comm'n, 764 P.2d 594 (Or. Ct. App. 1988). · cites it 5× “160(1) provides: “Subject to the provisions of subsections (2) and (3) of this section, and of ORS 537.170 to 537.190, the Water Resources Commission shall approve all applications made in proper form which contemplate the application of water to a beneficial use, unless the…”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). · cites it 87× “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
Doherty v. Oregon Water Resources Dir., 783 P.2d 519 (Or. 1989). · cites it 2× “ORS 537.170(5) provides, in part: “ ‘In determining whether the proposed use would impair or be detrimental to the public interest, the Water Resources Commission shall consider: 6* * * * * “ ‘(b) The maximum economic development of the waters involved.”
Lentz v. State ex rel. Water Resources Dep't, 962 P.2d 41 (Or. Ct. App. 1998). · cites it 21× “What is now ORS 537.170 was enacted as section 13 of Senate Bill 674 during the 1995 legislative session.”
East Valley Water v. Water Resources Comm'n (Or. Ct. App. 2023). · cites it 22× “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
WaterWatch of Oregon v. Water Resources Dept., 468 P.3d 478 (Or. Ct. App. 2020). “160(1), (3); ORS 537.170(8)(a) (referring to “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,…”
Show all 13 citing cases →
— Or. Rev. Stat. § 537.170(1) — 1 case
Steamboaters v. Winchester Water Control Dist., 688 P.2d 92 (Or. Ct. App. 1984). “Pursuant to ORS 537.170, District’s application was referred to WPRB.”
— Or. Rev. Stat. § 537.170(2) — 4 cases
Pete's Mountain Homeowners Ass'n v. Oregon Water Resources Dep't, 238 P.3d 395 (Or. Ct. App. 2010). “ORS 537.170(2). The hearing itself is otherwise conducted according to the provisions of the contested case hearing provisions of the APA.”
Waterwatch of Oregon, Inc. v. Water Resources Comm'n, 88 P.3d 327 (Or. Ct. App. 2004). “4 Further, after a contested case hearing and the issuance of a final order under ORS 537.170, “any party may file exceptions to the order” with the commission.”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
— Or. Rev. Stat. § 537.170(2)(b) — 1 case
Waterwatch of Oregon, Inc. v. Water Resources Comm'n, 88 P.3d 327 (Or. Ct. App. 2004). “4 Further, after a contested case hearing and the issuance of a final order under ORS 537.170, “any party may file exceptions to the order” with the commission.”
— Or. Rev. Stat. § 537.170(2)(f) — 2 cases
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
— Or. Rev. Stat. § 537.170(3) — 3 cases
Pete's Mountain Homeowners Ass'n v. Oregon Water Resources Dep't, 238 P.3d 395 (Or. Ct. App. 2010). “ORS 537.170(2). The hearing itself is otherwise conducted according to the provisions of the contested case hearing provisions of the APA.”
Steamboaters v. Winchester Water Control Dist., 688 P.2d 92 (Or. Ct. App. 1984). “Pursuant to ORS 537.170, District’s application was referred to WPRB.”
Diack v. City of Portland, 759 P.2d 1070 (Or. 1988). “170 ([5]a-g), the project proposed in Permit Application 63266 is an allowed use of available water providing increased economic and multiple use benefits through efficiency and diversity of use without detriment to existing rights or the control of the water resource.”
— Or. Rev. Stat. § 537.170(4) — 1 case
Steamboaters v. Winchester Water Control Dist., 688 P.2d 92 (Or. Ct. App. 1984). “Pursuant to ORS 537.170, District’s application was referred to WPRB.”
— Or. Rev. Stat. § 537.170(5) — 6 cases
Diack v. City of Portland, 759 P.2d 1070 (Or. 1988). “170 ([5]a-g), the project proposed in Permit Application 63266 is an allowed use of available water providing increased economic and multiple use benefits through efficiency and diversity of use without detriment to existing rights or the control of the water resource.”
Benz v. Water Resources Comm'n, 764 P.2d 594 (Or. Ct. App. 1988). “160(1) provides: “Subject to the provisions of subsections (2) and (3) of this section, and of ORS 537.170 to 537.190, the Water Resources Commission shall approve all applications made in proper form which contemplate the application of water to a beneficial use, unless the…”
East Valley Water v. Water Resources Comm'n, 539 P.3d 789 (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
Doherty v. Oregon Water Resources Dir., 783 P.2d 519 (Or. 1989). “ORS 537.170(5) provides, in part: “ ‘In determining whether the proposed use would impair or be detrimental to the public interest, the Water Resources Commission shall consider: 6* * * * * “ ‘(b) The maximum economic development of the waters involved.”
Lentz v. State ex rel. Water Resources Dep't, 962 P.2d 41 (Or. Ct. App. 1998). “What is now ORS 537.170 was enacted as section 13 of Senate Bill 674 during the 1995 legislative session.”
— Or. Rev. Stat. § 537.170(5)(b) — 2 cases
Diack v. City of Portland, 759 P.2d 1070 (Or. 1988). “170 ([5]a-g), the project proposed in Permit Application 63266 is an allowed use of available water providing increased economic and multiple use benefits through efficiency and diversity of use without detriment to existing rights or the control of the water resource.”
Doherty v. Oregon Water Resources Dir., 783 P.2d 519 (Or. 1989). “ORS 537.170(5) provides, in part: “ ‘In determining whether the proposed use would impair or be detrimental to the public interest, the Water Resources Commission shall consider: 6* * * * * “ ‘(b) The maximum economic development of the waters involved.”
— Or. Rev. Stat. § 537.170(5)(d) — 1 case
Benz v. Water Resources Comm'n, 764 P.2d 594 (Or. Ct. App. 1988). “160(1) provides: “Subject to the provisions of subsections (2) and (3) of this section, and of ORS 537.170 to 537.190, the Water Resources Commission shall approve all applications made in proper form which contemplate the application of water to a beneficial use, unless the…”
— Or. Rev. Stat. § 537.170(6) — 5 cases
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 539 P.3d 789 (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
Lentz v. State ex rel. Water Resources Dep't, 962 P.2d 41 (Or. Ct. App. 1998). “What is now ORS 537.170 was enacted as section 13 of Senate Bill 674 during the 1995 legislative session.”
East Valley Water v. Water Resources Comm'n (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
— Or. Rev. Stat. § 537.170(7)(a) — 1 case
Lentz v. State ex rel. Water Resources Dep't, 962 P.2d 41 (Or. Ct. App. 1998). “What is now ORS 537.170 was enacted as section 13 of Senate Bill 674 during the 1995 legislative session.”
— Or. Rev. Stat. § 537.170(7)(b) — 1 case
Lentz v. State ex rel. Water Resources Dep't, 962 P.2d 41 (Or. Ct. App. 1998). “What is now ORS 537.170 was enacted as section 13 of Senate Bill 674 during the 1995 legislative session.”
— Or. Rev. Stat. § 537.170(8) — 5 cases
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 539 P.3d 789 (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
Waterwatch of Oregon, Inc. v. Water Resources Comm'n, 88 P.3d 327 (Or. Ct. App. 2004). “4 Further, after a contested case hearing and the issuance of a final order under ORS 537.170, “any party may file exceptions to the order” with the commission.”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
— Or. Rev. Stat. § 537.170(8)(a) — 6 cases
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 539 P.3d 789 (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
WaterWatch of Oregon v. Water Resources Dept., 468 P.3d 478 (Or. Ct. App. 2020). “160(1), (3); ORS 537.170(8)(a) (referring to “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,…”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
WaterWatch of Oregon v. Water Resources Dept., 501 P.3d 507 (Or. 2021).
— Or. Rev. Stat. § 537.170(8)(f) — 4 cases
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n, 539 P.3d 789 (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
East Valley Water v. Water Resources Comm'n, 374 Or. 148 (Or. 2025). “153 and ORS 537.170 require the commission to “consider” all of the public interest factors—and balance them against one another—to determine whether the presumption has been overcome.”
East Valley Water v. Water Resources Comm'n (Or. Ct. App. 2023). “12 11 At the time of that decision, the factors were contained in ORS 537.170(5), but the statute has since been amended.”
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