2013 Oregon Revised Statutes
Volume : 13 - Water Resources, Agriculture and Food
Chapter 543 - Hydroelectric Projects
Section 543.017 - Minimum standards for development of hydroelectric power; public interest considerations; rules.

(1) In order to carry out the policy set forth in ORS 543.015, the following minimum standards shall apply to any action of the Water Resources Commission relating to the development of hydroelectric power in Oregon:

(a) The anadromous salmon and steelhead resources of Oregon shall be preserved. The commission shall not approve activity that may result in mortality or injury to anadromous salmon and steelhead resources or loss of natural habitat of any anadromous salmon and steelhead resources except when an applicant proposes to modify an existing facility or project in such a manner that can be shown to restore, enhance or improve anadromous fish populations within that river system.

(b) Any activity related to hydroelectric development shall be consistent with the provisions of the Columbia River Basin Fish and Wildlife Program providing for the protection, mitigation and enhancement of the fish and wildlife resources of the region as adopted by the Pacific Northwest Electric Power and Conservation Planning Council pursuant to Public Law 96-501.

(c) Except as provided in this paragraph, no activity may be approved that results in a net loss of wild game fish or recreational opportunities. If a proposed activity may result in a net loss of any of the above resources, the commission may allow mitigation if the commission finds the proposed mitigation in the project vicinity is acceptable. Proposed mitigation that may result in a wild game fish population, or the fishery the wild game fish population provides, being converted to a hatchery dependent resource is not acceptable mitigation. A water dependent recreational opportunity must be mitigated by another water dependent recreational opportunity. Mitigation of water dependent recreational opportunities that, in the judgment of the commission, are of statewide significance with a recreational opportunity that is readily available on other waters of this state is not acceptable mitigation. In deciding whether mitigation is acceptable, the commission shall consult with other local, state and federal agencies.

(d) Other natural resources in the project vicinity, including water quality, wildlife, scenic and aesthetic values, and historic, cultural and archaeological sites, shall be maintained or enhanced. No activity may be approved that, in the judgment of the commission after balancing gains and losses to all affected natural resources, may result in a net loss of natural resources. In determining whether the proposed activity may result in a net loss of natural resources, the commission may consider mitigation if the commission determines the proposed mitigation in the project vicinity is acceptable. Mitigation may include appropriate measures considered necessary to meet the net loss standard. In determining whether mitigation is acceptable, the commission shall consult with appropriate state, federal and local agencies.

(e) In determining whether it is in the public interest to allocate water for a proposed hydroelectric development, the commission shall consider present and future power needs and shall make a finding on the need for the power. For a hydroelectric project with a nominal electric generating capacity of 25 megawatts or more, the Water Resources Commission shall consider any recommendation by the Energy Facility Siting Council. The Energy Facility Siting Council's recommendation shall be based solely on information contained in the hearing record of the Water Resources Commission. The commission's order on the proposed hydroelectric development shall describe the Energy Facility Siting Council's recommendations on the need for the power. If the commission's decision on the need for power is contrary to the Energy Facility Siting Council's recommendation, the commission's order shall explain the commission's failure to follow the recommendation of the Energy Facility Siting Council. The commission also shall consult with the Energy Facility Siting Council on other matters within the expertise of the Energy Facility Siting Council.

(2) The commission shall adopt all necessary rules to carry out the policy set forth in ORS 543.015 and to implement the minimum standards set forth in subsection (1) of this section. In the absence of implementing rules, any action of the commission relating to hydroelectric development shall comply with the standards as set forth in this section.

(3) Nothing in this section limits the authority of any state agency to make recommendations regarding appropriate license conditions during the consideration of the issuance of a license or permit for an existing hydroelectric project. [1985 c.569 §3; 1993 c.544 §6; 1995 c.229 §2; 2007 c.71 §176]

Note: Sections 1 to 4, chapter 152, Oregon Laws 2011, provide:

Sec. 1. Section 2 of this 2011 Act is added to and made a part of ORS chapter 543. [2011 c.152 §1]

Sec. 2. (1) A wave energy project that does not qualify under ORS 543.014 is exempt from the minimum standards specified in ORS 543.017 if:

(a) The project generates electricity from wave energy;

(b) The project is located within Oregon's territorial sea, as defined in ORS 196.405;

(c) The nominal electric generating capacity, as defined in ORS 469.300, of the project does not exceed five megawatts;

(d) A license under the Federal Power Act, 16 U.S.C. 791a et seq., is required to either construct or operate the project and the license provides for adaptive management to prevent or mitigate unexpected adverse impacts on the environment, fish and wildlife resources, commercial fishing and recreation; and

(e) The project is constructed and operated subject to an agreement with the Water Resources Department, State Department of Fish and Wildlife, Department of State Lands, Department of Land Conservation and Development, Department of Environmental Quality, State Department of Energy and State Parks and Recreation Department.

(2) The agreement specified in subsection (1)(e) of this section:

(a) Must provide for the collection and analysis of information necessary or desirable to determine, and measures to prevent or mitigate, the impact of the project on the environment, fish and wildlife resources, commercial fishing and recreation; and

(b) May be developed with the assistance of an advisory group consisting of representatives of each local government and federally recognized Indian tribe that is affected by the wave energy project.

(3) The Water Resources Commission may adopt rules regarding projects described in this section to implement the policies of ORS 543.015, specify provisions for adaptive management and provide for the distribution of the information specified in subsection (2) of this section. [2011 c.152 §2]

Sec. 3. Section 2 of this 2011 Act applies only to wave energy projects for which an application is made to the Department of State Lands on or before December 31, 2021. [2011 c.152 §3]

Sec. 4. Section 2 of this 2011 Act is repealed January 2, 2022. [2011 c.152 §4]