ORS Chapter 543a

Chapter 543A — Reauthorizingand Decommissioning Hydroelectric Projects

 

2009 EDITION

 

 

REAUTHORIZATIONOF HYDROELECTRIC PROJECTS

 

WATERLAWS

 

GENERALPROVISIONS

 

543A.005  Definitions

 

543A.010  Findings

 

543A.015  Purpose

 

543A.020  Policy

 

543A.025  Minimumstandards for decision on reauthorization of water right; rules

 

WATERRIGHT APPLICATION PROCESS FOR REAUTHORIZING A STATE PROJECT

 

543A.030  Noticeof intent

 

543A.035  Reauthorizationapplication and public comment

 

543A.040  Processdetermination

 

543A.045  Publicscoping meeting

 

543A.050  Applicationreport

 

543A.055  HydroelectricApplication Review Team review of application; draft proposed final order;public comment

 

WATERRIGHT APPLICATION PROCESS FOR REAUTHORIZING A FEDERALLY LICENSED PROJECT

 

543A.060  Coordinationof state and federal reauthorization processes

 

543A.065  Changesto expiration date of water right for existing project

 

543A.071  WaterResources Department notification to holder of hydroelectric license or waterright for hydroelectric purposes; response of holder

 

543A.075  Noticeof intent to apply for reauthorization of right to use water for hydroelectricpurposes

 

543A.080  Submissionof preliminary application information

 

543A.085  Publicscoping meeting

 

543A.090  Mid-studystatus report; public meeting; period for comment on status report

 

543A.095  Draftapplication

 

543A.100  Finalapplication for water right; application for water quality certification

 

543A.105  HydroelectricApplication Review Team review of final application; unified state position infederal proceeding

 

543A.110  Waterquality certification

 

543A.115  Finalunified state position

 

PROCESSFOR COMPLETING REAUTHORIZATION OF WATER RIGHT FOR EITHER STATE OR FEDERALLYLICENSED PROJECT

 

543A.120  Proposedfinal order

 

543A.125  Approvalor rejection of application for reauthorization

 

543A.130  Contestedcase hearing; final order

 

543A.135  Exceptionsto final order

 

543A.140  Terms,limitations and conditions of water right

 

543A.145  Waterright certificate

 

543A.150  Modificationof time limits

 

DECOMMISSIONING

 

543A.300  Decommissioning;rules

 

543A.305  Conversionof hydroelectric water right to in-stream water right; exceptions

 

HYDROELECTRICAPPLICATION REVIEW TEAM

 

543A.400  Dutiesof Hydroelectric Application Review Team

 

FEESAND EXPENSES

 

543A.405  Applicationfees

 

543A.410  Feeschedule; appeal

 

543A.415  Reauthorizationfee

 

MISCELLANEOUS

 

543A.800  Effectof hydroelectric reauthorization process on existing rights

 

543A.805  Referenceto licensee or license

 

543A.810  Effectof amendment or repeal of law

 

GENERALPROVISIONS

 

      543A.005Definitions.As used in ORS 543A.005 to 543A.415:

      (1)“Commission” means the Water Resources Commission.

      (2)“Department” means the Water Resources Department.

      (3)“Director” means the Water Resources Director.

      (4)“Federally licensed project” means an existing project licensed under ORS543.260 that is also licensed by and has been or will be reviewed by theFederal Energy Regulatory Commission under the Federal Power Act, as amended.

      (5)“Project” has the meaning given in ORS 543.010.

      (6)“State project” means an existing project for which the authority to operate isa time-limited water right for the use of water for hydroelectric purposes andthat is not licensed by the Federal Energy Regulatory Commission. “Stateproject” includes a project granted an exemption by the Federal EnergyRegulatory Commission.

      (7)“Team” means a Hydroelectric Application Review Team established pursuant toORS 543A.035, 543A.075 or 543A.300.

      (8)“Water right” includes the use of water for hydroelectric purposes pursuant toa license issued under ORS 543.260. [1997 c.449 §1]

 

      543A.010Findings.The Legislative Assembly finds that many hydroelectric projects within thestate hold water rights for hydroelectric purposes for a limited time period,and that those water rights will expire. State law does not currently prescribea means for reauthorizing the use of water for hydroelectric purposes.Therefore, the Sixty-eighth Legislative Assembly created a hydroelectric taskforce to recommend a process and standards for a coordinated state review ofexisting facilities. The hydroelectric task force was composed ofrepresentatives of interested state agencies, investor-owned utilities,publicly owned utilities, municipalities, environmental organizations,agricultural organizations and nonutility owners of hydroelectric projects. Inits report to the Sixty-ninth Legislative Assembly, the hydroelectric taskforce included legislative recommendations that served as the foundation forthe provisions of this chapter and ORS 468.065, 468B.040, 468B.045, 468B.046,536.015, 536.050, 543.012 and 543.710. [1997 c.449 §2]

 

      543A.015Purpose.It is the purpose of this chapter and ORS 468.065, 468B.040, 468B.045,468B.046, 536.015, 536.050, 543.012 and 543.710 to establish a process fordeveloping a coordinated state position to be reflected in governmentalproceedings related to the reauthorization of existing hydroelectricfacilities. The coordinated state position shall be reflected in statedecisions, including but not limited to decisions relating to the allocation ofwater, certification of water quality and other state regulatory actions, aswell as in state comments on federal actions, including relicensing by theFederal Energy Regulatory Commission. [1997 c.449 §3]

 

      543A.020Policy.The Legislative Assembly declares that it is the policy of the State of Oregon:

      (1)To reauthorize the use of water by existing projects provided that suchprojects meet the standards established in ORS 543A.025, are consistent withother applicable state laws and will not impair or be detrimental to the publicinterest.

      (2)To recognize that existing projects have resulted in both benefits and costs tosociety, and that the opportunity exists on reauthorization to promote thepublic benefits while minimizing the public costs.

      (3)To maintain or enhance the natural resources of the state and to protect thenatural resources of the state from adverse impacts caused by the continuedexistence of a project.

      (4)To protect the health and safety of the residents of the state.

      (5)To require the Water Resources Department and other affected state agencies toconduct a coordinated review of projects seeking reauthorization in order todevelop a unified state position in any local, state or federal proceedingsrelated to the reauthorization of hydroelectric projects. [1997 c.449 §4]

 

      543A.025Minimum standards for decision on reauthorization of water right; rules. (1) Followingthe process set forth in ORS 543A.005 to 543A.410, the Water Resources Directorshall issue a water right for continued operation of an existing hydroelectricproject upon a finding that the proposed use will not impair or be detrimentalto the public interest, 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 otherbeneficial use to which the water may be applied for which it may have aspecial 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, includingdrainage, 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 ofthe waters involved.

      (f)All vested and inchoate rights to the waters of this state or to the use of thewaters 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 and537.505 to 537.534.

      (2)In determining whether the proposed use will impair or be detrimental to thepublic interest, the following minimum standards shall apply:

      (a)For impacts to fish and wildlife resources attributable to the project, theWater Resources Department shall require:

      (A)Mitigation for:

      (i)Adverse impacts that occur due to new construction or operational changes tothe project; and

      (ii)Ongoing adverse impacts existing at the time of reauthorization; and

      (B)Appropriate measures to promote restoration and rehabilitation of fish andwildlife resources to support goals expressed in statute or in standards,plans, guidelines and policies adopted by rule by the State Fish and WildlifeCommission.

      (b)All conditions included in a water right certificate issued to reauthorize theuse of water for hydroelectric purposes shall be consistent with any planadopted by the Pacific Northwest Electric Power and Conservation PlanningCouncil for the protection, mitigation and enhancement of the fish and wildliferesources of the region.

      (c)The project shall comply with water quality standards adopted by theEnvironmental Quality Commission.

      (d)The project shall not endanger the public health and safety. The project shallbe operated in a manner that provides practical protection from vulnerabilityto seismic and geologic hazards.

      (e)Wetland resources shall be protected, maintained or enhanced. The WaterResources Department shall impose conditions on reauthorization consistent withthis paragraph after considering impacts to wetland resources associated withthe project, including wetlands lost or created by construction and operationof the project, and mitigation proposed by the applicant. Reauthorization thatresults in a net loss to existing wetland resources shall not be approved.

      (f)Other resources in the project vicinity including recreational opportunities,scenic and aesthetic values, historic, cultural and archaeological sites, andbotanical resources shall be protected, maintained or enhanced. The departmentshall impose conditions on reauthorization consistent with this paragraph afterconsidering impacts to such resources associated with the project, includingresources lost or created by construction and operation of the project, andmitigation proposed by the applicant. If the project results in a net loss toexisting resources, reauthorization shall not be approved.

      (3)In determining the mitigation, restoration and rehabilitation measures requiredunder subsection (2) of this section, the Water Resources Department shallconsider historic impacts, ongoing impacts and projected future impacts of theproject and the existence and success of past mitigation measures associatedwith the project. Required mitigation, restoration and rehabilitation may includemeasures to restore or replace the benefits of historic resource conditions inorder to meet resource goals contained in standards, plans, guidelines andpolicies adopted by rule by the State Fish and Wildlife Commission and in rulesadopted by other state agencies with regulatory or advisory responsibility forthe project.

      (4)The Water Resources Commission shall adopt all rules necessary to carry out thepolicy set forth in ORS 543A.020 and to implement the minimum standards setforth in subsection (2) of this section. In the absence of implementing rules,the department may act on applications for reauthorization of a project subjectto the standards set forth in this section.

      (5)As used in this section, “mitigation” means addressing the adverse effects of aproject proposed for reauthorization by considering, in the following order ofpriority:

      (a)Avoiding the impact altogether by not taking a certain development action orparts of that action;

      (b)Minimizing impacts by limiting the degree or magnitude of the developmentaction and its implementation;

      (c)Rectifying the impact by repairing or rehabilitating the affected environment;

      (d)Reducing or eliminating the impact over time by preservation or maintenanceoperations during the life of the development action by monitoring and takingappropriate corrective measures; and

      (e)Compensating for the impact by replacing or providing comparable substituteresources or environments. [1997 c.449 §5]

 

WATERRIGHT APPLICATION PROCESS FOR REAUTHORIZING A STATE PROJECT

 

      543A.030Notice of intent.(1) Not later than three years before the expiration of a water right for astate project, the Water Resources Department shall notify the project owner ofthe expiration of the water right and request that the owner advise thedepartment whether the owner intends to seek reauthorization of the water rightfor the state project.

      (2)If the owner does not intend to seek reauthorization, the owner shall, within90 days after receiving notice under subsection (1) of this section, inform thedepartment of the disposition of the state project.

      (3)If the owner intends to seek reauthorization, the owner shall, within 90 daysafter receiving notice under subsection (1) of this section, submit to thedepartment a notice of intent to file an application for reauthorization of thewater right. The notice of intent shall:

      (a)Include a statement of the applicant’s intent to continue operation of thestate project; and

      (b)Describe the state project, including but not limited to the location andcapacity of the state project and the identification of affected Indian tribesand local government entities.

      (4)The department shall cause public notice to be given upon receipt of a noticeof intent. The public notice shall include the date of expiration of the waterright and a description of the state project.

      (5)Only the project owner may apply to reauthorize the water right for a stateproject. [1997 c.449 §6]

 

      543A.035Reauthorization application and public comment. (1) Within 60days after submitting a notice of intent under ORS 543A.030, the applicantshall submit to the Water Resources Department an application to reauthorizethe water right for the state project on a form prescribed by the department.

      (2)The reauthorization application for a water right for the use of water forhydroelectric purposes shall set forth:

      (a)The name and post-office address of the applicant;

      (b)The location of the project by county and stream and, when appropriate, by cityor nearby city;

      (c)The amount of water in cubic feet per second;

      (d)The theoretical water horsepower; and

      (e)Any other information required in the application form.

      (3)Upon receipt of a reauthorization application for the use of water forhydroelectric purposes, the Water Resources Department shall convene theHydroelectric Application Review Team for the state project. The team shallconsist of representatives of the Water Resources Department, the Department ofEnvironmental Quality and the State Department of Fish and Wildlife and mayinclude a representative of any other state agency that has regulatory oradvisory responsibility for the state project or a resource or hazard affectedby the state project.

      (4)Within seven days after receiving a reauthorization application undersubsection (3) of this section, the department shall notify any person whoresponded to the notice of intent and give public notice of the application inthe weekly notice published by the department. The notice shall include a requestfor comments on the application and information pertaining to how an interestedperson may obtain future notices about the application and participate in thereauthorization process.

      (5)Within 45 days after the public notice under subsection (4) of this section,any person interested in the application shall request future notices about thestate project and may submit written comments to the department. [1997 c.449 §7]

 

      543A.040Process determination. (1) Within 60 days after the close of the period allowedfor public comment under ORS 543A.035, the Hydroelectric Application ReviewTeam shall determine whether the reauthorization application for the waterright contains sufficient information to determine whether reauthorization ofthe state project will comply with ORS 543A.025.

      (2)If the team decides that sufficient information is available to determinewhether reauthorization of the water right for the state project will complywith ORS 543A.025, the team shall proceed with expedited processing of thereauthorization application. The team shall review the application and anypublic comments received on the application and prepare a draft proposed finalorder, including findings of fact and conclusions of law, for the water right.Upon completion of the draft proposed final order, the team shall give publicnotice of the draft proposed final order in the weekly notice published by theWater Resources Department. The notice shall include a request for comments onthe draft proposed final order.

      (3)Within 60 days after the public notice under subsection (2) of this section,any person interested in the draft proposed final order shall submit writtencomments to the team. A person who submits written comments under thissubsection shall identify the provision of the draft proposed final order inquestion and specify why the person objects to or supports the provision. Theteam shall review the comments received and may revise the draft proposed finalorder. Unless the department receives a request under subsection (4) of thissection, the team shall submit a proposed final order to the department within30 days after the close of the period for public comment on the draft proposedfinal order.

      (4)If the draft proposed final order prepared by the team under subsection (2) ofthis section proposes to deny the application for reauthorization of the waterright, the applicant may request the department to process the application inaccordance with ORS 543A.045 to 543A.055. The applicant shall submit a requestunder this subsection within the 60-day period allowed for public comment onthe draft proposed final order.

      (5)Unless the department receives a request under subsection (4) o