2007 Oregon Code - Chapter 543 :: Chapter 543 - Hydroelectric Projects
Chapter 543 —
Hydroelectric Projects
2007 EDITION
HYDROELECTRIC PROJECTS
WATER LAWS
GENERAL PROVISIONS
543.010Â Â Â Â Definitions
for ORS 543.010 to 543.610
543.012Â Â Â Â Applicability
of chapter to reauthorization of existing hydroelectric project
543.014Â Â Â Â Exemption
for wave energy project; conditions
543.015Â Â Â Â Policy
543.017Â Â Â Â Minimum
standards for development of hydroelectric power; public interest
considerations; rules
543.050Â Â Â Â Powers
of Water Resources Commission as to permits, licenses, investigations, reports,
forms and examination of records
543.055Â Â Â Â Hearings
and witnesses
543.060Â Â Â Â Investigations;
access to project, maps, books and other project data
HYDROELECTRIC PROJECT FEES
543.075Â Â Â Â Definitions
for ORS 543.075 to 543.092
543.078Â Â Â Â Annual
fee for hydroelectric project
543.080Â Â Â Â Project
specific fees; summary of project specific expenditures
543.082Â Â Â Â Invoice
for fees; overdue fee; interest on delinquent fees
543.085Â Â Â Â Periodic
review of annual fee
543.088Â Â Â Â Payment
of costs or fee for reauthorization or relicensing of project
543.090Â Â Â Â Payment
of expenses of Hydroelectric Application Review Team for project operating
under federal license and state power claim or uncertificated claim
543.092Â Â Â Â Amendment
of hydroelectric water right or claim; rules; unilateral amendment of power
claim or uncertificated claim to assess project specific fees
543.095Â Â Â Â Challenges
to certain statutes related to hydroelectric projects
APPROPRIATION OF WATER FOR POWER; APPLICATION
OF LAW
543.110Â Â Â Â Appropriation
and use of water for power is governed by this chapter
543.120Â Â Â Â Water
power projects to be in conformity with this chapter
543.140Â Â Â Â Projects
or developments constructed by federal government excepted from law
543.150Â Â Â Â Municipal
corporations and utility districts; applicability of laws; powers of commission
respecting districts
543.160Â Â Â Â Hydroelectric
facility on
543.165Â Â Â Â Hydroelectric
facility on part of
543.170Â Â Â Â Hydroelectric
facility on Squaw Creek prohibited
543.175Â Â Â Â Hydroelectric
facility on
PRELIMINARY PERMITS; LICENSES
543.210Â Â Â Â Preliminary
permits; application; contents; fee
543.220Â Â Â Â Notice
of filing of application; waiting period
543.225Â Â Â Â Hearing
on application; notice; policy
543.230Â Â Â Â Hearings
on application; rules; protest
543.250Â Â Â Â Permit;
duration; transfer; cancellation; priority; terms and conditions; denial
543.255Â Â Â Â Determination
of cumulative impacts of proposed hydroelectric power projects; consolidated
review; applicability
543.260Â Â Â Â Licenses;
duration; terms and conditions; termination; denial of application; preference
of municipality or utility district
543.265Â Â Â Â Testing
of fish protection measures as condition for hydroelectric project permit or license;
scope and cost
543.270Â Â Â Â Preference
in granting permit or license; municipal use
543.280Â Â Â Â Fee
payments by licensee
543.290Â Â Â Â Filing
of maps, plans, estimates and other materials; incorporation as part of
license; alteration; further statements and data
543.300Â Â Â Â Conditions
governing license; fees; waiver of conditions
543.310Â Â Â Â Disposition
of moneys collected
543.320Â Â Â Â Effect
of amendment or repeal of law
TIME FOR CONSTRUCTION; TERMINATION, REVOCATION OR TRANSFER OF LICENSE
543.410Â Â Â Â Construction
of project; time for commencement and completion; supply of service; extension
of time; nonperformance; termination of license
543.420Â Â Â Â Noncompletion
of construction within prescribed time; judicial proceedings; sale of property;
disposition of proceeds; rights of purchaser
543.430Â Â Â Â Proceedings
after completion of project for violation of license terms; authority of court;
sale of project
543.440Â Â Â Â Transfer
of license, rights or property; effect
FINANCING OF PROJECTS; LIENS; BOND OF
LICENSEE
543.525Â Â Â Â ORS
543.530 to 543.550 not applicable to regulated utilities
543.530Â Â Â Â Issuance
by licensee of stocks, bonds or other interest without authorization of Water
Resources Commission prohibited
543.540Â Â Â Â Consideration
for bonds, stocks and other securities; restrictions; corporate shares; sale
price of securities; discount from face value
543.550Â Â Â Â Liens
prohibited; exceptions; what may be included by mortgage, trust deed or sale;
determination of investment in case of sale of part
543.560Â Â Â Â Bond
of licensee or letter of credit securing claims of suppliers; enforcement of
obligation; action for sums due State Accident Insurance Fund Corporation
ACQUISITION OF PROJECT BY STATE OR
MUNICIPALITY
543.610Â Â Â Â Acquisition
of project by state or municipality
POWER GENERATION BY DISTRICTS
543.650Â Â Â Â Policy
543.655Â Â Â Â Definitions
for ORS 543.650 to 543.685
543.660Â Â Â Â Authority
of district to enlarge or modify water system and power generating facilities;
joint district ventures; prohibitions; sale of energy; regulations
543.662Â Â Â Â Authority
of district to develop joint project with private person; restrictions
543.664Â Â Â Â Rules
relating to joint projects of districts and private persons
543.665Â Â Â Â Authority
to issue revenue bonds to acquire hydroelectric facilities
543.670Â Â Â Â Manner
of issuance of revenue bonds
543.675Â Â Â Â Power
of eminent domain not to be exercised to acquire hydroelectric facilities
543.680Â Â Â Â Compliance
with water appropriation laws required
543.685Â Â Â Â District
board to require weatherization; Weatherization Fund; purpose
POWER DEVELOPMENT FEES
543.705Â Â Â Â Definitions
for ORS 543.710 to 543.730
543.710Â Â Â Â Annual
fee based on horsepower; exemptions; disbursement
543.720Â Â Â Â Payment
of annual fee; accompanying statement; penalty for nonpayment of fees or
nonfiling; lien; foreclosure; effect of filing excessive claim; computation of
horsepower
543.730Â Â Â Â Failure
to file statement or pay fees as evidence of abandonment of claim; cancellation
of claim, permit and water right certificate
USE OF EXISTING WATER RIGHT FOR HYDROELECTRIC
PURPOSES
543.760Â Â Â Â Definition
of water right
543.765Â Â Â Â Certificate
to use water for hydroelectric purposes; expedited application process; fees
PENALTIES
543.990Â Â Â Â Penalties
GENERAL PROVISIONS
     543.010
Definitions for ORS 543.010 to 543.610. As used in ORS 543.010 to 543.610:
     (1) “Actual original cost” includes the
sum paid to the state at the time the application was made for a preliminary
permit; the sum paid or secured to be paid to the state by the applicant for
license at the time such application was made; such sums as may be paid to the
United States or any department thereof; and such sums as shall have been
reasonably and prudently expended in preliminary investigations, explorations
and organization expenses, as determined by the Water Resources Commission.
     (2) “Project” means a complete unit,
improvement or development. It includes, among other things, power houses,
water wheels, conduits or pipes, dams and appurtenant works and structures,
storage, diverting or forebay reservoirs connected therewith, and primary lines
transmitting power to the point of junction with a distributing system, or with
any interconnected primary system, miscellaneous works and structures used in
connection with the unit or any part thereof, rights of way, lands, flowage
rights and all other properties, rights and structures necessary or appropriate
in the use, operation and maintenance of any such unit. [Amended by 1985 c.673 §139;
1995 c.229 §1]
     543.012
Applicability of chapter to reauthorization of existing hydroelectric project. (1) Except for the provisions of ORS
543.300, 543.310, 543.430, 543.440, 543.610, 543.650 to 543.685, 543.710,
543.720, 543.730 and 543.990, nothing in this chapter shall apply to the
reauthorization of an existing project.
     (2) All references in ORS 543.300, 543.310,
543.430, 543.440, 543.610, 543.650 to 543.685, 543.710, 543.720, 543.730 and
543.990 to a license or a license issued under ORS 543.010 to 543.610 also
shall be considered a reference to a water right issued under ORS 468.065,
468B.040, 468B.045, 468B.046, 536.015, 536.050, 543.012 and 543.710 and ORS
chapter 543A. [1997 c.449 §42]
     543.014
Exemption for wave energy project; conditions. A wave energy project is exempt from
regulation under this chapter, except as provided in ORS 543.050 (3), 543.055
and 543.060 if:
     (1) The project generates electricity from
wave energy;
     (2) The project is located within
     (3) The nominal electric generating
capacity, as defined in ORS 469.300, of the project does not exceed five
megawatts; and
     (4) A license under the Federal Power Act,
16 U.S.C. 791a et seq., is not required to either construct or operate the
project. [2007 c.212 §2]
     Note: 543.014 was added to and made a part of ORS
chapter 543 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
     543.015
Policy. The Legislative
Assembly declares that it is the policy of the State of
     (1) To protect the natural resources of
this state from possible adverse impacts caused by the use of the waters of
this state for the development of hydroelectric power.
     (2) To permit siting of hydroelectric
projects subject to strict standards established to protect the natural
resources of
     (3) To require the Water Resources
Commission, the Energy Facility Siting Council, the Department of Environmental
Quality and other affected state agencies to participate to the fullest extent
in any local, state or federal proceedings related to hydroelectric power
development in order to protect the natural resources of
     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
     (a) The anadromous salmon and steelhead
resources of
     (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 CouncilÂ’s recommendation shall be based
solely on information contained in the hearing record of the Water Resources
Commission. The commissionÂ’s order on the proposed hydroelectric development
shall describe the Energy Facility Siting CouncilÂ’s recommendations on the need
for the power. If the commissionÂ’s decision on the need for power is contrary
to the Energy Facility Siting CouncilÂ’s recommendation, the commissionÂ’s order
shall explain the commissionÂ’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]
     543.020 [Repealed by 1961 c.224 §20]
     543.030 [Repealed by 1961 c.224 §20]
     543.040 [Repealed by 1961 c.224 §20]
     543.050
Powers of Water Resources Commission as to permits, licenses, investigations,
reports, forms and examination of records. The Water Resources Commission may:
     (1) Issue preliminary permits, as provided
in ORS 543.210 to 543.250, to any person qualified to become a licensee.
     (2) Issue licenses, as provided in ORS 543.260,
to citizens of the United States, associations of citizens, or private
corporations organized under the laws of the United States or any state of the
United States, to appropriate, initiate, perfect, acquire and hold the right to
the use of waters within the state, including waters over which the state has
concurrent jurisdiction, and to construct, operate and maintain dams,
reservoirs, power houses, conduits, transmission lines, and all other works and
structures necessary or convenient for the use of the waters in the generation
and utilization of electricity.
     (3) Conduct investigations and collect
information the commission considers necessary or useful for the purposes of
ORS 543.010 to 543.610 and cooperate with the federal government and adjoining
states concerning all such matters, particularly with reference to waters
forming the boundary between this state and another state.
     (4) Prescribe the forms of all accounts,
records and memoranda to be kept by licensees under ORS 543.010 to 543.610.
     (5) Examine at any time all accounts,
books of account and documents and data related to the business of a licensee
under ORS 543.010 to 543.610; and require a licensee to submit, whenever
required by the commission, reports and statements under oath containing
information as to assets, liabilities, capitalization, gross receipts, interest
and dividend requirements, interest due and paid, amortization and other
reserves, net investment, cost of any project constructed, maintained or
operated, in whole or in part, cost of maintenance, operation, renewals,
replacements, cost of production, transmission, distribution and sale of
electricity, and other data as the commission may require.
     (6) Perform all acts, exercise all powers
and issue all orders which, in the judgment and discretion of the commission,
are necessary to effectuate the purposes of ORS 543.010 to 543.610. [Amended by
1955 c.673 §3; 1955 c.707 §39; 1961 c.224 §13; 1985 c.673 §140; 1995 c.229 §3]
     543.055
Hearings and witnesses. (1)
The Water Resources Commission may hold hearings and take testimony orally, by
deposition or in such other form as the commission considers satisfactory,
either within or without this state. The Water Resources Commission may
require, by subpoena, the attendance of witnesses and the production of
documentary evidence.
     (2) An administrative law judge assigned
from the Office of Administrative Hearings established under ORS 183.605, shall
conduct any contested case hearing that the commission is required or permitted
by law to hold. The administrative law judge has the same powers with respect
to the conduct of the hearing as are granted by law to the commission,
including the taking of testimony, the signing and issuance of subpoenas and
the administering of oaths and affirmations to witnesses. The administrative
law judge shall keep a record of the proceedings on the hearing and shall
transmit such record to the commission.
     (3) The commission may designate any
person to take the testimony, affidavit or deposition of a witness. The person
so designated may administer an oath or affirmation to any such witness and
take the testimony thereof in accordance with such rules as the commission may
prescribe.
     (4) Witnesses appearing before the
commission or any person designated by the commission to take testimony shall
be paid the fees and mileage provided for witnesses in ORS 44.415 (2). [1955
c.673 §2; 1961 c.224 §14; 1985 c.673 §141; 1989 c.980 §15; 1999 c.849 §§112,113;
2003 c.75 §46]
     543.060
Investigations; access to project, maps, books and other project data. The Water Resources Commission, the Water
Resources Director or any employee of the Water Resources Department, at all
reasonable times, shall have free access to any project, addition or betterment
during or after construction or acquisition, and to all maps, plans, profiles,
estimates, engineersÂ’ reports, books, accounts, records and other data relating
to the project. [1985 c.673 §142]
     543.070 [Repealed by 1975 c.581 §29]
HYDROELECTRIC
PROJECT FEES
     543.075
Definitions for ORS 543.075 to 543.092. As used in ORS 543.075 to 543.092:
     (1) “1998 dollar” means a dollar amount
that when adjusted for inflation or deflation equals the value of a dollar in
1998.
     (2) “Holder” means a person authorized to
operate a hydroelectric project under the authority of either a time-limited
water right, a certificated water right or a pre-1909 uncertificated claim. “Holder”
includes licensees, power claimants, uncertificated claimants and water right
certificants.
     (3) “Licensee” means a person authorized
to operate a hydroelectric project through the means of a license containing a
time-limited water right.
     (4) “Power claimant” means a person
authorized to operate a hydroelectric project through the means of a water
right that does not expire.
     (5) “Reauthorize” means the process by
which a hydroelectric project holding a time-limited hydroelectric license
acquires new authorization to continue operating for an additional fixed amount
of time according to ORS chapter 543A.
     (6) “Relicense” means the process by which
the Federal Energy Regulatory Commission issues a new license to allow a
hydroelectric project to continue operating past the expiration date of its
current license.
     (7) “Team” means a Hydroelectric
Application Review Team created pursuant to ORS 543A.035, 543A.075 or 543A.300.
     (8) “Uncertificated claimant” means a
person authorized to operate a hydroelectric project through the means of an
uncertificated claim established prior to 1909.
     (9) “Water right certificant” means a
person authorized to operate a hydroelectric project through the means of a
time-limited certificated water right. [1999 c.873 §4]
     543.078
Annual fee for hydroelectric project. (1) On or before January 1 of each year, each holder shall pay to the
State of
     (2) The amount of the annual fee required
under subsection (1) of this section shall be determined in the following
manner:
     (a) Subject to the schedule set forth in
subsection (3) of this section, each holder shall pay an amount, in 1998
dollars, equal to $0.405 per theoretical horsepower covered by the water right
for the holderÂ’s hydroelectric project. The annual fee may be set forth in the
water right or may be established by order of the Water Resources Director and
shall be adjusted annually for inflation according to rules established by the
Water Resources Commission. The annual fee also may be adjusted through the
periodic review process established in ORS 543.085.
     (b) Each holder of a hydroelectric project
that produces 123.5 theoretical horsepower or less shall pay an annual fee of
$50 for that project.
     (3) The fee determined in subsection (2)
of this section shall apply to a project on the January 1 following the
occurrence of an event enumerated as follows:
     (a) A licensee or water right certificant
shall begin to pay the annual fee after the final order for the reauthorized
water right is issued under ORS 543A.130.
     (b) Notwithstanding paragraph (a) of this
subsection, if a licensee holds, on October 23, 1999, an original state
hydroelectric license for which the original expiration date was or is more
than five years after the expiration date of the original Federal Energy
Regulatory Commission license for the project, the licensee shall begin payment
of the annual fee established under this section after the expiration date of
the original state hydroelectric license.
     (c) A power claimant, or uncertificated
claimant, licensed by the Federal Energy Regulatory Commission shall begin to
pay the annual fee after the Federal Energy Regulatory Commission issues a new
license. A power claimant or uncertificated claimant that received a new
license from the Federal Energy Regulatory Commission within 10 years prior to
October 23, 1999, shall begin to pay the annual fee on January 1, 2000.
     (d) A power claimant, or uncertificated claimant,
whose project is exempted from licensure by the Federal Energy Regulatory
Commission or not licensed by the Federal Energy Regulatory Commission shall
begin paying the annual fee under this section on January 1, 2008, for that
project.
     (4) No fee shall be assessed under ORS
543.710 for a project subject to an annual fee under this section. [1999 c.873 §5]
     543.080
Project specific fees; summary of project specific expenditures. (1) In addition to the annual fee set forth
in ORS 543.078, a holder may be required to pay project specific fees.
     (2) Project specific fees are fees that
compensate a state agency for the agencyÂ’s reasonable and necessary oversight
of a holderÂ’s implementation of the protection, mitigation and enhancement
measures included in a water right for the project, a certificate issued
pursuant to ORS 468B.040 or 468B.045 or a Federal Energy Regulatory Commission
license.
     (3) Project specific fees shall be
considered at the time of reauthorization or relicensing of a hydroelectric
project and, if needed, shall be established before the proposed final order is
issued under ORS 543A.115, and shall be included in the reauthorized water
right or the certificate issued pursuant to ORS 468B.040 or 468B.045. In the
case of power claims and uncertificated claims, project specific fees shall be
considered at the time of relicensing and, if needed, shall be included in an
order of the Water Resources Director amending the claim pursuant to ORS
543.092 or in a certificate issued for the project pursuant to ORS 468B.040 or
468B.045.
     (4) The need for, and amount of, a project
specific fee shall be based upon the following factors:
     (a) Experimental or unproven nature of the
proposed mitigation;
     (b) Significance of the resource affected;
     (c) Need for ongoing agency involvement in
reviewing the effectiveness of the proposed measure;
     (d) Need for agency personnel to perform
field work or research efforts; and
     (e) Overall nature of the protection,
mitigation or enhancement measures, including but not limited to consideration
of whether the measure is simple, complex, closed-ended or adaptive and whether
the measure is determined solely by the holder or by an agency or public
committee.
     (5) A project specific fee may not be
assessed for:
     (a) Work on projects other than the
project for which the fee is established;
     (b) Work that is paid for by the annual
hydroelectric fee;
     (c) Development of statewide hydroelectric
policy;
     (d) Coordination of statewide activities
within an agency;
     (e) Costs to the agency of Attorney
General assistance associated with ongoing litigation; or
     (f) Routine monitoring of compliance with
nonadaptive management provisions of the water right, an uncertificated claim,
a certificate issued pursuant to ORS 468B.040 or 468B.045 or a Federal Energy
Regulatory Commission license.
     (6) A project specific fee shall be
time-limited. One year before expiration of a project specific fee, the holder
and any affected agency shall review the need, if any, to modify, extend or
terminate the project specific fee. After such review, the agency shall propose
a fee modification, extension or termination. Any dispute regarding the
proposed fee action shall be referred to an independent fact finder selected by
mutual agreement, whose costs shall be borne one-half by the holder and
one-half by the agency. The fact finder shall review whether the proposed fee
action is appropriate under and consistent with the criteria set forth in
subsections (2), (4) and (5) of this section. The fact finder shall not review
the substance of the protection, mitigation and enhancement measures contained
in the water right, the uncertificated claim, the certificate issued pursuant
to ORS 468B.040 or 468B.045 or the Federal Energy Regulatory Commission
license. The fact finder shall forward its determination in writing to the
holder and agency. Upon receipt and consideration of the fact finderÂ’s
determination, the agency shall notify the holder whether the project specific
fee is modified, extended or terminated. If the holder is dissatisfied with the
fee action, the holder may request administrative or judicial review in
accordance with statutes or rules applicable to a particular agencyÂ’s fee
action. The written determination of the fact finder shall be admissible in any
such administrative or judicial hearing. Notwithstanding any other law, a
presumption shall exist in favor of the determination of the fact finder and
the burden shall be on the party seeking a fee action contrary to the
determination of the fact finder to demonstrate that a different fee action is
justified under this section.
     (7) Subject to subsections (2) to (5) of
this section, the amount of a project specific fee shall be established based
on an estimate of the cost to the agency of the labor, supplies and overhead
expended by the agency in providing reasonable and necessary oversight of a
holderÂ’s implementation of the protection, mitigation and enhancement measures
included in the water right, the uncertificated claim, the certificate issued pursuant
to ORS 468B.040 or 468B.045 or the Federal Energy Regulatory Commission
license. The estimate used to derive a project specific fee amount shall be
determined by using increments of not more than 0.25 full-time equivalents.
     (8) A project specific fee shall be
payable after issuance of the final order pursuant to ORS 543A.130, or in the
case of power claimants and uncertificated claimants, after the issuance of
either the directorÂ’s order or a certificate issued for the project pursuant to
ORS 468B.040 or 468B.045. A project specific fee shall be paid in increments
that are reasonably related to the work to be performed and set forth in the
final order, certificate issued pursuant to ORS 468B.040 or 468B.045 or the
directorÂ’s order.
     (9) Each agency receiving project specific
fees shall, on a biennial basis, provide the holder paying the fees with a
summary of project specific expenditures. [1999 c.873 §6]
     543.082
Invoice for fees; overdue fee; interest on delinquent fees. (1) At least 45 days before the fees
required under ORS 543.078 or 543.080 become due, the Water Resources
Department shall issue invoices to the holder for each fee.
     (2) If any holder fails to pay the fees
required under ORS 543.078 or 543.080 within 15 days after the date specified
in the invoice, the department shall notify the holder of the amount and nature
of the overdue fee. Any such notice shall be sent to the holder by certified
mail and shall include notification that the holder has 30 days from the date
of the certified delivery of the notice to pay the overdue fee or the holder
shall be subject to the late payment penalty provisions of subsection (3) of
this section.
     (3) Any fee that is not paid within 30
days of the date a holder receives certified delivery of the notice required
under subsection (2) of this section shall be considered delinquent and shall
be increased by 25 percent. In addition, the state shall have a preference lien
for any such fee, together with interest at the rate of 10 percent per annum
from the date of delinquency, upon the property of the holder used, or
necessary for use, in the development of the water right, together with any
improvements erected on the property for such development. Upon notice from the
Water Resources Commission, the Attorney General shall foreclose the lien and
collect the amount due, as provided in this section, in the same manner as
other liens on real property are foreclosed.
     (4) The remedy set forth in subsection (3)
of this section is in addition to any other remedy provided by law for the
collection of moneys or for noncompliance with a condition of a water right
order, uncertificated claim or certification under ORS 468B.040 or 468B.045. [1999
c.873 §7]
     543.085
Periodic review of annual fee.
(1) The Water Resources Director shall appoint a review panel to review the
amount of the annual fee established under ORS 543.078 in 2003 and 2009 and
every eight years thereafter. The review panel shall consist of at least one
representative from the following and others at the directorÂ’s discretion:
     (a) The Department of Environmental
Quality;
     (b) The State Department of Fish and
Wildlife;
     (c) The Public Utility Commission;
     (d) The Water Resources Department;
     (e) Investor owned utilities;
     (f) Publicly owned utilities;
     (g) Municipalities;
     (h) Environmental organizations;
     (i) Agricultural organizations; and
     (j) Nonutility owners of hydroelectric
projects.
     (2) All holders paying annual fees under
ORS 543.078 shall be notified by the Water Resources Department at least 60
days in advance of the meeting of the review panel established in subsection
(1) of this section, and provided the opportunity to submit comments to the
panel.
     (3) Any periodic review conducted under
subsection (1) of this section shall evaluate each agencyÂ’s hydroelectric
program to determine if current staffing levels, activities and funding are
appropriate to fulfill program objectives. There shall be a presumption that
the fee should not change. To overcome the presumption and alter the existing
fee, the panel must find compelling reasons for alteration and must reach
unanimous consent on the new fee. If the presumption is overcome, upon
completion of the review process the director shall either adjust the annual
fee as recommended by the panel or elect not to adjust the fee. Any change in
the annual fee as a result of this section shall become effective on the
January 1 following the directorÂ’s action. The director shall notify all
holders of any change in the annual fee and the effective date of such change. [1999
c.873 §8]
     543.088
Payment of costs or fee for reauthorization or relicensing of project. (1) Notwithstanding ORS 543A.405 and
543A.410, during each year of the interim period established in subsection (2)
of this section, any licensee or water right certificant seeking
reauthorization of a state water right to operate a federally licensed
hydroelectric project shall pay the greater of:
     (a) The actual cost of the Hydroelectric
Application Review TeamÂ’s reauthorization activities for the year in question
as established pursuant to ORS 543A.405 and 543A.410; or
     (b) 12.5 cents per theoretical horsepower
as specified in the water right for each project under consideration for
reauthorization. This amount shall be calculated in 1998 dollars.
     (2) For any project, the interim period
referred to in subsection (1) of this section shall begin on the January 1
immediately following submission to the Water Resources Department of a
proposed final order for reauthorization of the project under ORS 543A.115 (2).
For any project, the interim period referred to in subsection (1) of this
section shall end on December 31 of the year the department issues a final
order on reauthorization of the project pursuant to ORS 543A.130.
     (3) Notwithstanding ORS 543.090, during
each year of the interim period established in subsection (4) of this section,
any power claimant or uncertificated claimant seeking to relicense a federally
licensed hydroelectric project shall pay the greater of:
     (a) The actual cost of the team’s
relicensing activities for the year in question as established pursuant to ORS
543.090; or
     (b) 12.5 cents per theoretical horsepower
as specified in the water right for each project under consideration for
relicensing. This amount shall be calculated in 1998 dollars.
     (4) For any project, the interim period
referred to in subsection (3) of this section shall begin on the January 1
immediately following issuance of an annual license for the project by the
Federal Energy Regulatory Commission. For any project, the interim period
referred to in subsection (3) of this section shall end on December 31 of the
year the Federal Energy Regulatory Commission issues a new license for the
project.
     (5) The Water Resources Department shall
reimburse a participating agency for costs incurred in the agencyÂ’s review of a
project during the year for which the fees are collected. Such costs shall not
include expenses of other state agencies for which a fee is otherwise collected
under state law. Any fees collected under subsection (1) or (3) of this section
in excess of the teamÂ’s actual cost of evaluation of the project for the year
shall be distributed according to ORS 536.015.
     (6) No fee shall be charged under this
section unless the project is a federally licensed project.
     (7) No fee shall be charged pursuant to
subsection (1) of this section unless the Hydroelectric Application Review Team
proposes to reauthorize the water right for the project in the proposed final
order submitted to the Water Resources Department under ORS 543A.115 (2).
     (8) Water right certificants and licensees
with water rights or licenses that expire more than five years after the
original federal license for the project expires shall not begin paying fees
assessed under this section until after the expiration date of the original
state hydroelectric license or water right. [1999 c.873 §9]
     543.090
Payment of expenses of Hydroelectric Application Review Team for project
operating under federal license and state power claim or uncertificated claim. (1) Any project operating under a
hydroelectric license issued by the Federal Energy Regulatory Commission and
concurrently operating under the authority of a power claim or uncertificated
claim shall pay all expenses related to the review and decision of a
Hydroelectric Application Review Team established under ORS 543A.075 that:
     (a) Are incurred by the team and any
agency participating as part of the team in the federal relicensing process;
and
     (b) Are not otherwise covered by the
reauthorization fee paid under ORS 543A.415.
     (2) Not later than six years before the
expiration of a hydroelectric license issued by the Federal Energy Regulatory
Commission to any project operating concurrently under the authority of a power
claim or uncertificated claim, the Water Resources Department shall contact the
holder to schedule a consultation meeting regarding expected fees to be
incurred by the Hydroelectric Application Review Team.
     (3) Relicensing fees shall be calculated
and assessed according to the terms and conditions set forth in ORS 543A.405
and 543A.410 for application fees. [1999 c.873 §10]
     543.092
Amendment of hydroelectric water right or claim; rules; unilateral amendment of
power claim or uncertificated claim to assess project specific fees. (1) Upon the request of the holder and the
approval of the Water Resources Department, a hydroelectric water right or
claim may be amended.
     (2) The Water Resources Department shall
develop rules governing the process by which a hydroelectric water right or
claim may be amended. Any amendments under subsection (1) of this section
shall:
     (a) Be consistent with the final unified
state position for the project;
     (b) Be consistent with the requirements of
ORS chapter 543A;
     (c) Cause no injury to other water rights;
and
     (d) Allow for public participation in the
amendment process.
     (3) The Water Resources Director may
unilaterally amend a power claim or uncertificated claim in order to assess
project specific fees under ORS 543.080. [1999 c.873 §11]
     543.095
Challenges to certain statutes related to hydroelectric projects. (1) As used in this section, “person” has
the meaning given that term in ORS 174.100.
     (2) No person shall be estopped or
precluded from challenging the constitutionality or validity of any provision
of chapter 449, Oregon Laws 1997, or the provisions of chapter 873, Oregon Laws
1999, as a result of having received or sought benefits under, complied with,
paid fees under or filed an application under those statutes, or as a result of
having participated in their drafting, enactment or implementation.
     (3) Nothing in this section shall be
construed to imply that a person is estopped or precluded from challenging the
validity or constitutionality of any statute as a result of having participated
in the drafting, enactment or implementation of the legislation that resulted
in the enactment of such statute. [1999 c.873 §29]
     Note: Legislative Counsel has substituted “chapter
873, Oregon Laws 1999,” for the words “this 1999 Act” in section 29, chapter
873, Oregon Laws 1999, compiled as 543.095. Specific ORS references have not
been substituted, pursuant to 173.160. The sections for which substitution
otherwise would be made may be determined by referring to the 1999 Comparative
Section Table located in Volume 20 of ORS.
     Note: 543.095 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 543 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
APPROPRIATION
OF WATER FOR POWER; APPLICATION OF LAW
     543.110
Appropriation and use of water for power is governed by this chapter. After February 26, 1931, no right to
appropriate or to use the waters of the lakes, rivers, streams or other bodies
of water within this state, including water over which this state has
concurrent jurisdiction, in connection with the development of any water power
project for the generation of electricity, shall be initiated, perfected,
acquired or held, except for and during the periods or extensions thereof
stated in ORS 543.010 to 543.610, and pursuant to the provisions thereof.
     543.120
Water power projects to be in conformity with this chapter. After February 26, 1931, no water power
project involving the use of the waters of lakes, rivers, streams or other
bodies of water within this state, including waters over which this state has
concurrent jurisdiction, for the generation of electricity, shall be begun or
constructed except in conformity with the provisions of ORS 543.010 to 543.610.
     543.130 [Repealed by 1961 c.224 §20]
     543.135 [1961 c.100 §§2,3; repealed by 1985 c.673 §185]
     543.140
Projects or developments constructed by federal government excepted from law. The provisions of ORS 543.010 to 543.610
shall not apply to any water power project or development constructed by the
     543.150
Municipal corporations and utility districts; applicability of laws; powers of
commission respecting districts. The provisions of ORS 543.010, 543.050, 543.210, 543.220, 543.250,
543.260 and 543.290 to 543.610 shall not apply to cities, towns or other
municipal corporations of this state, including utility districts organized
under section 12, Article XI, Oregon Constitution, and legislation enacted
thereunder; saving, however, to such cities, towns and other municipal
corporations the rights and preferences specified in ORS 543.260, 543.270 and
543.610. The Water Resources Commission shall exercise the powers in relation
to utility districts as may be conferred upon the commission by any legislation
providing for the creation of such utility districts. [Amended by 1985 c.673 §144;
1991 c.869 §7]
     543.160
Hydroelectric facility on
     (2) Nothing in subsection (1) of this
section applies to any hydroelectric facility or structure constructed on the
     Note: 543.160 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 543 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     543.165
Hydroelectric facility on part of
     Note: 543.165 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 543 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     543.170
Hydroelectric facility on Squaw Creek prohibited. No person, state agency, local government,
district or municipal corporation shall construct or maintain, and no officer
or agency of the state shall issue any permit for the construction or
maintenance of any hydroelectric facility or structure on Squaw Creek. [1985
c.560 §2]
     Note: 543.170 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 543 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     543.175
Hydroelectric facility on
     (a) The facility is located on an existing
irrigation diversion facility or structure constructed by persons.
     (b) The operation of the facility would
not require any water in addition to water appropriated for irrigation
purposes.
     (c) Operation of the facility would be
limited to the period of time during which water is diverted for irrigation
purposes and the diversion would not be extended for the purpose of
hydroelectric power generation.
     (2) Subsection (1) of this section shall
not apply to the construction and maintenance of or the issuance of a permit
for a hydroelectric facility or structure for which the hearing record is
closed on or before the July 12, 1985, whether or not the record is later
reopened by or at the direction of the Water Resources Commission for any
reason.
     (3) As used in this section, “
     Note: 543.175 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 543 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
PRELIMINARY
PERMITS; LICENSES
     543.210
Preliminary permits; application; contents; fee. (1) Any person who proposes to operate a
hydroelectric project in
     (2) The application for a preliminary
permit shall set forth:
     (a) The name and post-office address of
the applicant;
     (b) The approximate site of any proposed
dam or diversion;
     (c) The amount of water in cubic feet per
second;
     (d) The theoretical horsepower; and
     (e) Any other data the commission may by
rule require.
     (3) Upon receipt of an application for a
preliminary permit the commission shall indorse on the application the date of
receipt, and keep a record of the receipt of the application. The date so
indorsed shall determine the priority of the use of water initiated under the
provisions of ORS 543.010 to 543.610.
     (4) At the time of filing application for
preliminary permit the applicant shall pay to the state the portion of the
total project fee required in ORS 543.280, to cover costs of recording,
publishing notices and making investigations necessary to determine whether or
not a preliminary permit should be granted. [Amended by 1961 c.224 §15; 1985
c.673 §147; 1991 c.869 §8]
     543.220
Notice of filing of application; waiting period. (1) Whenever an application is made for a
preliminary permit and after said application has been referred to hearing, the
Water Resources Commission shall give written notice of the filing of the
application to:
     (a) Any municipality or other person or
corporation which, in the judgment of the commission, is likely to be
interested in or affected by the proposed project; and
     (b) The owner of any land that is:
     (A) Adjacent to any portion of the stream
in which the quantity of water will be decreased by the project; or
     (B) Adjacent to the site of the proposed
project.
     (2) The commission shall also publish
notice of the application once each week for at least four successive weeks and
for such further time, if any, as the commission shall determine, in a
newspaper of general circulation in each county in which the project covered by
the application is located.
     (3) No application for the appropriation
or use of water for the development of 1,000 theoretical horsepower or more
shall be granted until at least six months after the application for a
preliminary permit has been filed. [Amended by 1961 c.224 §16; 1975 c.581 §27;
1985 c.569 §23]
     543.225
Hearing on application; notice; policy. (1) The Water Resources Commission shall conduct a public hearing on
any application or amended application for a preliminary permit or for a
license for a major project of more than 100 theoretical horsepower and an
application for preliminary permit or license for a minor project of less than
100 theoretical horsepower if the commission concludes it is in the public
interest to do so.
     (2) The commission shall give proper
notice of the public hearing on an application under subsection (1) of this
section, to the applicant and to each protestant, if any. After the hearing, if
the commission determines that the proposed project does not comply with the
standards set forth in ORS 543.017 or rules adopted by the commission under ORS
543.017, or would otherwise impair or be detrimental to the public interest so
far as the coordinated, integrated state water resources policy is concerned,
it shall enter an order rejecting the application or requiring its modification
to conform to the public interest, to the end that the highest public benefit
may result from the proposed project. The order may set forth any or all of the
provisions or restrictions to be included in a preliminary permit or license
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.
     (3) In determining whether the proposed
project would impair or be detrimental to the public interest, the commission shall
have due regard for:
     (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 thereof, 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.
     (4) After the entry of the order specified
in subsection (2) of this section, the application for a preliminary permit or
for a license shall be referred to the Water Resources Director for further
proceedings consistent with the commission’s order. [1955 c.707 §42; 1961 c.224
§17; 1975 c.581 §28; 1985 c.569 §20; 1985 c.673 §148]
     543.230
Hearings on application; rules; protest. (1) The Water Resources Commission shall, by order or rule, provide
for the time and manner of hearings upon applications. However, upon request by
any person made within 30 days after the Water Resources Director issues an
order pertaining to cumulative impacts under ORS 543.255, the Water Resources
Commission shall conduct a contested case hearing in accordance with the
applicable provisions of ORS chapter 183 and any rules adopted by the
commission.
     (2) Every application for the
appropriation of water for the generation of electricity subject to the terms
of ORS 543.010 to 543.610 shall be subject to protest or remonstrance on behalf
of the public, or any district organized for public purposes, or any interested
private person, on the ground that the proposed construction, development or
improvement would damage or destroy the use or utility of the stream or other
body of water involved for other beneficial purposes, including propagation of
fish, scenic, aesthetic, recreational, park, highway or other beneficial use.
All protests and remonstrances under this subsection must be filed with the
commission within the time specified in the notice and must be in writing and
verified by the parties protesting, and a certified copy thereof shall be
served upon the applicant for the permit. However, in the discretion of the
administrative law judge, at the time of the hearing any interested party may
make an oral protest if there exists any good reason therefor, and the
administrative law judge shall allow the applicant to be heard in opposition
thereto. Every protest or remonstrance under this subsection which is not filed
and served as required in this subsection shall be deemed waived. [Amended by
1955 c.673 §4; 1955 c.707 §40; 1961 c.224 §18; 1993 c.544 §7; 1995 c.416 §41;
1999 c.849 §115; 2003 c.75 §98]
     543.240 [Repealed by 1991 c.869 §15]
     543.250
Permit; duration; transfer; cancellation; priority; terms and conditions;
denial. A preliminary permit
may be issued for a period not exceeding a total of three years. It shall not
be transferable except upon written approval of the Water Resources Commission,
and may be canceled by order of the commission at any time upon proof to the
commissionÂ’s satisfaction, after hearing, that the holder is not in good faith
complying with the provisions of the permit. The holder of a preliminary permit
which has not been canceled shall have priority of right to make application
for a license covering the project for which the preliminary permit was issued,
within the term of the permit or any lawful extension thereof. Except as
otherwise specified in ORS 543.010 to 543.610, the commission may fix the terms
and conditions of any preliminary permit issued thereunder, and each
preliminary permit issued shall set forth all the terms and conditions. The
commission may decline to grant any application for a preliminary permit. [Amended
by 1985 c.673 §149; 1993 c.63 §1]
     543.255
Determination of cumulative impacts of proposed hydroelectric power projects;
consolidated review; applicability. (1) Whenever the Water Resources Department receives an application to
appropriate water for a new hydroelectric project under ORS 537.140 to 537.320
or for a hydroelectric permit or license under ORS 543.010 to 543.610, the
department shall determine whether the impacts of the project would be
cumulative with:
     (a) Impacts of other proposed
hydroelectric projects for which an application is pending before the
department; or
     (b) Existing hydroelectric projects in the
same river basin.
     (2) If the department determines that
there is no possibility that the hydroelectric projects proposed in pending
applications or existing projects may have cumulative effects, the Water
Resources Director shall issue an order setting forth the departmentÂ’s
determination that there are no cumulative effects and the departmentÂ’s
decision that consolidated review is not required.
     (3) If the department determines that
pending applications or existing projects may have cumulative effects, the
Water Resources Commission shall conduct a consolidated review before approving
any application in the affected river basin. A consolidated review process
shall be conducted as a contested case hearing under the applicable provisions
of ORS chapter 183 and shall include a study of the individual and cumulative
effects of proposed hydroelectric projects for which applications are pending
before the department and existing hydroelectric projects. In its final order
on an application, the commission or the department shall include its findings
on cumulative impacts. The findings of the commission or department under this
section must be sufficient to support the departmentÂ’s decision to approve or
deny an application.
     (4) Any application for a project in the
same river basin filed after the commission begins a consolidated review
contested case hearing shall not be reviewed until the commission has issued
final findings on cumulative effects for all projects included in the
consolidated review proceeding.
     (5) At the request of an applicant for a
permit to appropriate water for a new hydroelectric project under ORS 537.140
to 537.320 or for a permit or license under ORS 543.010 to 543.610, the
commission may immediately upon receiving such application begin the
consolidated review proceeding under subsection (3) of this section. [1985
c.569 §10; 1985 c.673 §193; 1993 c.544 §8; 1995 c.229 §4; 1995 c.416 §39]
     543.257 [1985 c.569 §11; 1985 c.673 §194; repealed
by 2007 c.354 §1]
     543.260
Licenses; duration; terms and conditions; termination; denial of application;
preference of municipality or utility district. (1) A license may be issued by the Water
Resources Commission to any qualified person for a period not exceeding 50
years. If the project is subject to regulation by the Federal Energy Regulatory
Commission, the term shall be concurrent with and expire upon expiration of the
federal license for the project. Each license shall be conditioned upon
acceptance by the licensee of all the terms and conditions of ORS 543.010 to
543.610, and such further terms and conditions as the commission may prescribe,
not inconsistent with those sections. All such terms and conditions, and their
acceptance by the licensee, shall be expressed in the license. A license may be
terminated for the reasons and in the manner provided in ORS 543.010 to
543.610. The form of license containing all the terms and conditions may be set
forth in the preliminary permit.
     (2) The commission may deny any
application for a license if it appears that the applicant has failed to comply
substantially with the terms and conditions of the preliminary permit or,
notwithstanding the commission has issued a preliminary permit, if in the
judgment of the commission the project is unfeasible or the public interest
requires the denial thereof.
     (3) A municipal corporation or people’s
utility district shall be given preference on any project in the issuance of a
license, upon condition that the municipal corporation or peopleÂ’s utility
district exercising such preference right shall be required to reimburse the
holder of a preliminary permit for all reasonable actual expenditures made by
the holder upon the project described or referred to therein. [Amended by 1983
c.740 §214b; 1985 c.673 §150; 1995 c.229 §5]
     543.265
Testing of fish protection measures as condition for hydroelectric project
permit or license; scope and cost. The Water Resources Department shall impose as a condition to any
water right permit to appropriate water for hydroelectric purposes granted
under ORS 537.211 or any license granted under ORS 543.260 that the person
operating the hydroelectric project shall, during the operational lifetime of
the project, perform or allow the State Department of Fish and Wildlife to
perform, any tests or studies required by the department to evaluate the
effectiveness of measures for the protection of fish. The scope and cost of
these studies will be negotiated between the State Department of Fish and
Wildlife and the operator. [1985 c.674 §6; 1987 c.158 §116; 1995 c.416 §40]
     Note: 543.265 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 543 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     543.270
Preference in granting permit or license; municipal use. In issuing preliminary permits, and in
issuing licenses where no preliminary permit is held by an applicant for a
license, preference shall be given to the application which appears to the
Water Resources Commission to be best adapted to conserve and utilize the water
power involved. However, any application for the use of water made by any municipal
corporation of this state under any law of the state, before a preliminary
permit is issued, or before a license is issued when no preliminary permit upon
the proposed project has been issued, shall always have preference. [Amended by
1985 c.673 §151]
     543.280
Fee payments by licensee.
(1) Any person who applies to the Federal Energy Regulatory Commission for a
preliminary permit to operate a hydroelectric project shall, at the same time,
apply for a state preliminary permit. An applicant for a state preliminary
permit for a new hydroelectric project shall submit to the Water Resources
Commission a complete copy of any application for the project filed with the
Federal Energy Regulatory Commission or other federal agency. For preliminary
permits, if the copy of the federal application is filed with the commission at
the same time it is filed with the federal agency, at the commissionÂ’s
discretion, such copy may fulfill the requirements of ORS 543.210, except for
the fee requirement in ORS 543.210 (4).
     (2) An applicant for a preliminary permit
or license for a project or for a permit to appropriate water for power
purposes shall pay to the state a project fee based on the capacity of the
project to cover costs of recording, publishing notices, conducting the hearing
required by ORS 543.225 and making investigations necessary to determine
whether a permit should be granted.
     (3) The amount of the total project fee
required under subsection (2) of this section shall be:
     (a) For a project of less than 100 theoretical
horsepower, $1,000.
     (b) For any project of 100 theoretical
horsepower or more, an amount equal to $5,000 plus $1,000 per megawatt for each
megawatt of capacity in excess of five megawatts, up to a maximum of $100,000.
     (4) Except for projects of less than 100
theoretical horsepower, the project fee required under subsection (2) of this
section shall be payable in advance before each of four stages of project
review as established by rule by the Water Resources Commission. The payment
schedule shall not require the applicant to pay more than $2,500 of the project
fee at the first stage of project review or more than 50 percent of the total
project fee in the first two stages of the project review. For a project of
less than 100 theoretical horsepower, the applicant shall pay 50 percent of the
fee at the time of filing the application for a preliminary permit or
application for a permit to appropriate water for power purposes and the
remaining 50 percent before the commission issues a license or a water right
permit. A person may withdraw an application for a hydroelectric project after
any stage of project review without further payment of fees under this section.
     (5) In addition to the project fee
required under subsection (2) of this section, any applicant for a project to
be sited at a location where anadromous fish or threatened or endangered
species are present shall pay a surcharge of 30 percent of the total project
fee. The surcharge shall be collected in conjunction with the project fee at each
stage of the project review.
     (6) The commission shall provide an
applicant a statement itemizing the staff time, resources and costs expended to
review the application at each project stage. The statement shall include the
costs expended by the State Department of Fish and Wildlife and the Water
Resources Department specific to the project. [Amended by 1957 c.581 §1; 1985
c.673 §152; 1991 c.869 §9]
     543.290
Filing of maps, plans, estimates and other materials; incorporation as part of
license; alteration; further statements and data. The applicant for a license shall submit to
and file with the Water Resources Commission:
     (1) All maps, plans, specifications and
cost estimates as may be required by the commission for a full understanding of
the proposed project. The maps, plans and specifications, when approved by the
commission, shall become a part of the license, if one is issued upon the
application, and thereafter no change shall be made in any such maps, plans and
specifications until the proposed change has been approved by the commission.
When a proposed change is approved by the commission, the changes shall become
a part of the license.
     (2) Any further statements and data as may
be required by the commission concerning the proposed project, the market to be
served, the financial responsibility of the applicant, the plan of financing
and any other matters deemed material by the commission. [Amended by 1985 c.673
§153]
     543.300
Conditions governing license; fees; waiver of conditions. Any license issued under ORS 543.010 to
543.610 shall take into consideration, and shall be on, the following
conditions:
     (1) That the proposed project shall be
such as, in the judgment of the Water Resources Commission, is well adapted to
the development and utilization of the water power involved.
     (2) That the licensee shall construct and
build the project according to the maps, plans and specifications filed with
and approved by the commission, and within the time fixed by the license or by
any lawful extension thereof.
     (3) The operations of the licensee so far
as they affect the use, storage and discharge from storage of waters affected
by the license, shall at all times be controlled by such reasonable rules as
the commission may prescribe for the protection of life, health and property,
and in the interest of the fullest practicable conservation and utilization of
such waters for power purposes and for other beneficial public uses, including
recreational purposes. The licensee shall release water from the project
reservoir at such rate in cubic feet per second, or such volume in acre-feet
per specified period of time, as the commission may prescribe.
     (4) That the licensee will maintain the
project, and each part thereof, in good order and repair and in efficient
operation, for the development and transmission of electricity to its
reasonable capacity; shall make all necessary renewals and replacements as
required; and shall maintain and operate the project, and all parts thereof,
conformably to the rules of the commission not inconsistent with ORS 543.010 to
543.610.
     (5) That the licensee will pay to the
state annually not more than $1 for each horsepower covered by the license.
This sum shall constitute a first lien upon the project, which lien may be
enforced by suit in equity or other appropriate proceeding, or payment thereof
may be enforced by the state in an action for debt. Payment of such license
fees may be waived by the commission during all or any part of the period of
construction. The fees need not be uniform throughout the entire period of the
license, but may be for different amounts for different periods. The amount of
the license fees, within the minimum and maximum limits herein specified, shall
be determined by the commission and expressed in the license.
     (6) Other and further conditions not
inconsistent with ORS 543.010 to 543.610 as the commission may require in the
public interest.
     (7) In issuing a license for a minor
project of not more than 100 horsepower the commission may waive all or any of
the conditions and requirements of ORS 543.010 to 543.610 except the period for
which a license may be issued, and the annual charge as determined by the
commission under subsection (5) of this section. In issuing licenses for
projects in excess of 100 horsepower for which the applicants are required to
secure permits and licenses from the United States as a condition precedent to
the construction of the projects, the commission may waive and modify such of
the terms, conditions and requirements of ORS 543.010 to 543.610, except the
period for which a license may be issued and the annual charge as determined by
the commission under subsection (5) of this section, as the commission, by
order, after full investigation and public hearing, shall find to make
impracticable the construction of such projects. During the time that a
licensee is not a public utility and does not sell electric energy, and does
not sell bonds or other evidences of debt against the licenseeÂ’s plant, the
commission may waive the accounting and amortization requirements of ORS
543.010 to 543.610, even where the project involved exceeds 100 horsepower.
     (8) Subsection (5) of this section does
not apply to a water right reauthorized pursuant to ORS chapter 543A. [Amended
by 1959 c.560 §1; 1961 c.224 §19; 1985 c.673 §154; 1999 c.873 §23]
     543.310
Disposition of moneys collected. Except as provided in ORS 536.015, all moneys collected under the
provisions of ORS 543.010 to 543.610 shall forthwith be paid to the State
Treasurer and become a part of the General Fund. [Amended by 1985 c.674 §10;
1991 c.869 §10]
     543.320
Effect of amendment or repeal of law. The right to alter, amend or repeal ORS 543.010 to 543.610, or any
part thereof, hereby is expressly reserved; but no such alteration, amendment
or repeal shall affect any license theretofore issued under the provisions of
ORS 543.010 to 543.610, or the rights of any licensee thereunder, unless
expressly assented to by the licensee.
TIME FOR
CONSTRUCTION; TERMINATION, REVOCATION OR TRANSFER OF LICENSE
     543.410
Construction of project; time for commencement and completion; supply of
service; extension of time; nonperformance; termination of license. (1) The licensee shall commence the
construction of the project works within the time fixed in the license, which
shall not be more than two years from the date thereof, shall thereafter in
good faith and with due diligence prosecute such construction, and shall,
within the time fixed in the license, complete and put into operation such part
of the ultimate development as the Water Resources Commission considers
necessary to supply the reasonable needs of the then available market, and
shall, from time to time thereafter construct such portion of the balance of
the development as the commission directs, so as to supply adequately the
reasonable market demands until development is completed.
     (2) The period for commencement of
construction may be extended once but not longer than two additional years, and
the period for the completion of construction carried on in good faith and with
reasonable diligence may be extended by the commission when not incompatible
with the public interests.
     (3) If the licensee does not commence
actual construction of the project works or of any specified part of the project
works, within the time prescribed in the license or as extended by the
commission, then, after due notice given, the license shall, as to the project
works or part of the project works, be terminated upon written order of the
commission. [Amended by 1985 c.673 §155]
     543.420
Noncompletion of construction within prescribed time; judicial proceedings;
sale of property; disposition of proceeds; rights of purchaser. If construction of a project under license
has been begun but has not been completed within the time prescribed in the
license or in any lawful extension thereof, then the Attorney General, upon
request of the Water Resources Commission, shall institute proceedings in the
circuit court for the county in which some part of the project is situated, for
termination of the rights of the licensee under the license, the sale of the
property embraced in the project, and for such other relief as the case may
demand. Any judgment or decree entered in the proceeding shall provide for
distribution of the proceeds of the sale to the parties equitably entitled
thereto. The purchaser at any such sale shall take the property subject to all
the terms and conditions of the license under which construction was begun,
except insofar as they may be modified by the commission. [Amended by 1985
c.673 §156]
     543.430
Proceedings after completion of project for violation of license terms;
authority of court; sale of project. The Attorney General shall, upon request of the Water Resources
Commission, institute proceedings in the circuit court for the county in which
any project, or the major part of a project is situated, after the project has
been completed, for the purpose of revoking for violation of its terms any
license issued under ORS 543.010 to 543.610, or for the purpose of correcting
or remedying by injunction, mandamus or other appropriate writ or decree, any
act by the licensee in violation of the terms of those sections, or of any rule
or order of the commission. The court shall have jurisdiction of the proceedings
and may issue and execute all necessary process to compel compliance with the
terms of any license, the terms of ORS 543.010 to 543.610, the lawful orders
and rules of the commission. If a decree revoking a license is entered, the
court may sell the whole, or any part, of a project under the license; wind up
the business of the licensee conducted in connection with the project;
distribute the proceeds to the parties equitably entitled thereto; and make and
enforce such further orders and decrees as equity and justice may require. At
any such sale the purchaser shall take the rights and privileges belonging to
the licensee and shall perform all the duties of the licensee under the
license. The remedies provided by this section are in addition to the remedies
otherwise provided by ORS 543.010 to 543.610. [Amended by 1985 c.673 §157]
     543.440
Transfer of license, rights or property; effect. No voluntary transfer of any license or any
rights under a license or of any property acquired, constructed or operated
pursuant to license issued under ORS 543.010 to 543.610 shall be made without
written approval of the Water Resources Commission. Any successor or assignee
of any licensee under any project acquired, constructed or operated by
licensee, whether by voluntary transfer approved by the commission or sale upon
foreclosure, execution or otherwise, shall be subject to all the terms and
conditions of the license and of the provisions of ORS 543.010 to 543.610 to
the same extent as though the successor or assignee was the original licensee
thereunder. Any mortgage, deed of trust, or other lien suffered or created upon
any such project shall be subject and subordinate to all the terms and
conditions of ORS 543.010 to 543.610. However, the provisions of this section
shall not apply to any transfer, voluntary or involuntary, to the state or any
municipal corporation thereof, and upon such transfer the license shall
terminate. [Amended by 1985 c.673 §158]
     543.510 [Repealed by 1995 c.229 §9]
     543.520 [Repealed by 1995 c.229 §9]
FINANCING OF
PROJECTS; LIENS; BOND OF LICENSEE
     543.525
ORS 543.530 to 543.550 not applicable to regulated utilities. The provisions of ORS 543.530 to 543.550
shall not apply to any licensee which is a utility as defined in ORS 757.005
and regulated by the Public Utility Commission of Oregon. [1965 c.333 §1]
     Note: 543.525 was enacted into law by the
Legislative Assembly but was not added to or made a part of 543.010 to 543.610
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.
     543.530
Issuance by licensee of stocks, bonds or other interest without authorization
of Water Resources Commission prohibited. (1) No licensee shall issue any share of corporate stock, or any bond,
or other evidence of interest in or indebtedness of the licensee, or assume any
obligation or liability as lessor, lessee, guarantor, indorser, surety or
otherwise, in respect of the corporate shares, bonds or other evidence of
indebtedness of any person in connection with the financing, acquisition,
construction, maintenance or operation of any project, unless and until, and
then only to the extent that, upon application by the licensee, and after
investigation by the Water Resources Commission of the purposes and uses of the
proposed issue and the proceeds thereof, or of the proposed assumption of
obligation or liability, the commission, by order, authorizes the issue or
assumption. The commission shall make the order only if the commission finds
that the issue or assumption:
     (a) Is for some lawful object of the
licensee, compatible with the public interest, and is necessary to, or
appropriate for, the proper performance by the licensee of the terms and
conditions of the license and will not impair the licenseeÂ’s ability to perform
the terms and conditions; and
     (b) Is reasonably necessary and
appropriate for such purposes.
     (2) The commission may grant or deny the
application to authorize the issue or assumption, or grant the same in part and
deny in part, and may modify the provisions of any previous order and prescribe
such terms and conditions as the commission considers necessary or appropriate
in the premises. Every such application shall be made in such form and contain
such data as the commission by rule may prescribe.
     (3) No licensee or any director, officer,
attorney or agent thereof shall knowingly assent to or concur in any issue or
assumption contrary to the provisions of this section, or the orders of the
commission made pursuant to this section or ORS 543.540. [Amended by 1953 c.271
§1; 1985 c.673 §159]
     543.540
Consideration for bonds, stocks and other securities; restrictions; corporate
shares; sale price of securities; discount from face value. No bonds, notes or other obligations or
securities or corporate stock shall be issued in connection with the financing,
construction or acquisition of any project or part of a project, under a
license issued pursuant to ORS 543.010 to 543.610, except for cash or property.
If issued for property, the price or value at which the property is to be
acquired by the licensee and made a part of any such project must be submitted
to and approved by the Water Resources Commission before it is purchased or
acquired. All corporate shares issued in connection with any such project shall
have a nominal or par value. All bonds, notes or other obligations or
securities, and all shares of corporate stock issued or sold by any licensee in
connection with the acquisition, construction or financing of any project, or
part of a project, shall be issued or sold or used in the purchase or
acquisition of property at the full face or nominal value thereof, unless the
commission consents to and approves the sale for cash, or the use of cash in
the purchase or acquisition of property at a discount from the face or nominal
value of the property. Any discount so approved and consented to shall be
considered a part of the cost of financing. [Amended by 1985 c.673 §160]
     543.550
Liens prohibited; exceptions; what may be included by mortgage, trust deed, or
sale; determination of investment in case of sale of part. No lien for labor, services, materials,
machinery or equipment shall exist or be acquired or enforced upon any property
acquired, constructed or made a part of any project under license issued
pursuant to ORS 543.010 to 543.610. No property shall be put into or made part
of any such project unless owned by the licensee free and clear of all liens
and claims whatsoever, except a lien created by the licensee upon the whole
property embraced in the project by mortgage or deed of trust, to the end that
the entire property embraced in the project be kept and maintained as an
indivisible whole. The mortgage or deed of trust may include other property.
Any voluntary sale or any sale upon a judgment of foreclosure, execution or
otherwise, shall be of the whole property embraced in the project unless the
Water Resources Commission, by an order in writing, consents to and approves of
a sale of a part of the property. If less than the whole of any property
embraced in a project is sold with the consent and approval of the commission,
the commission shall determine at the time of the sale the actual net
investment in the part sold, as well as the actual net investment in the part
remaining unsold. [Amended by 1985 c.673 §161; 2003 c.576 §496]
     543.560
Bond of licensee or letter of credit securing claims of suppliers; enforcement
of obligation; action for sums due State Accident Insurance Fund Corporation. Before entering upon the work of
construction or acquisition of any project, the licensee shall execute to the
state a bond, with good and sufficient sureties or an irrevocable letter of
credit issued by an insured institution, as defined in ORS 706.008, in either
case, to be approved by the Water Resources Commission, to the effect that the
licensee shall promptly make payment to all persons supplying labor, services,
material, machinery or equipment for the prosecution of the work, and all
amounts due the State Industrial Accident Fund from the licensee. Any person
supplying the licensee with any labor, services, material, machinery or
equipment for prosecution of the work who has not been paid therefor within 60
days after the same has been supplied, or when payment is due according to any
special agreement, may, within one year after any payment has become due, bring
an action against the licensee, and the sureties upon the bond, or the letter
of credit issuer for payment of the amount due to the person, and prosecute the
same to final judgment and execution. The action shall be brought in the name
of the state upon the relation of the person to whom payment is due. The state,
at the request of the State Accident Insurance Fund Corporation may prosecute
an action to judgment and execution against the licensee and the sureties upon
the bond or letter of credit for all sums due the State Industrial Accident
Fund. [Amended by 1985 c.673 §162; 1991 c.331 §80; 1997 c.631 §487]
ACQUISITION
OF PROJECT BY STATE OR MUNICIPALITY
     543.610
Acquisition of project by state or municipality. (1) Upon not less than two yearsÂ’ notice in
writing the state, or any municipality thereof, shall have the right at any
time to take over and thereafter to maintain and operate any project
constructed under a license pursuant to ORS 543.010 to 543.610, upon payment of
just compensation, including such reasonable damages, if any, to valuable,
serviceable and dependent property of the holder of the license, not taken
over, as may be caused by the severance therefrom of the property taken, and
shall assume all contracts entered into by the licensee which are required to
have and do have the express approval of the Water Resources Commission. If the
sum to be paid cannot be agreed upon by the holder of the license and the
municipality or the state, as the case may be, it shall be determined in a
proceeding in equity instituted by the state or municipality, as the case may
be, in the circuit court of the county in which the major part of the project
is located.
     (2) There is also expressly reserved to
the state, and any municipality thereof, the right to take over all or any part
of any project by condemnation proceedings as may be provided by the laws of
     543.620 [Repealed by 1995 c.229 §9]
POWER
GENERATION BY DISTRICTS
     543.650
Policy. The Legislative
Assembly finds that a significant potential exists for the development of the
hydroelectric generation capabilities of water systems serving domestic water
supply districts, irrigation districts, drainage districts, water improvement
districts and water control districts. The Legislative Assembly also finds that
the development of such hydroelectric generation capabilities is desirable for
meeting the electrical energy needs of the citizens of the State of
     543.655
Definitions for ORS 543.650 to 543.685. As used in ORS 543.650 to 543.685, unless the context requires
otherwise:
     (1) “District” means any one of the
following:
     (a) A domestic water supply district
organized under ORS chapter 264.
     (b) An irrigation district organized under
ORS chapter 545.
     (c) A drainage district organized under
ORS chapter 547.
     (d) A water improvement district organized
under ORS chapter 552.
     (e) A water control district organized
under ORS chapter 553.
     (2) “Principal Act” means the statutes,
other than ORS 543.650 to 543.685, which describe the powers of a district,
including, but not limited to, the statutes under which a district is proposed
or is operating.
     (3) “Water system” means any structure or
facility constructed by persons and used by a district to achieve the districtÂ’s
purpose under the districtÂ’s principal Act whether or not such structure or
facility is owned by the district. [1981 c.420 §2; 1985 c.561 §4]
     543.660
Authority of district to enlarge or modify water system and power generating
facilities; joint district ventures; prohibitions; sale of energy; regulations. (1) A district, alone or jointly with other
districts, electric cooperatives, as defined in ORS 261.010, peopleÂ’s utility
districts, a cooperative as defined in ORS 62.015, municipal corporations
authorized to engage in generating and distributing electricity or public
utilities, as defined in ORS 757.005, engaged in the business of generating and
distributing electricity, may enlarge or modify its water system for the
purpose of generating electricity and may operate and maintain such facilities,
notwithstanding any provision of paragraph (a) of this subsection. If a
district already has hydroelectric generating capability, the district may
enlarge or modify the districtÂ’s facilities used for generation of
hydroelectric power. Two or more districts may, as a joint venture, generate
electricity under ORS 543.650 to 543.685 as long as the structure or facility
that is enlarged or modified to produce the electricity is part of the water
system of at least one of the districts participating in the joint venture.
However, a district may not:
     (a) Construct, acquire, operate or
maintain any facility or structure that is not an enlargement or modification
of the districtÂ’s water system solely or primarily for the purpose of
generating electricity; or
     (b) Be created solely or primarily for the
purpose of constructing, acquiring, operating or maintaining hydroelectric
facilities.
     (2) A district shall sell the excess
electric energy generated at such hydroelectric facilities to the Bonneville
Power Administration, a public utility as defined in ORS 757.005, an electric
cooperative as defined in ORS 261.010, a peopleÂ’s utility district, a
cooperative as defined in ORS 62.015, a municipal corporation or a municipally
owned utility. Any sale of excess electric energy shall be made in accordance
with terms and conditions of the Federal Power Act, as amended by the Public
Utility Regulatory Policies Act of 1978. As used in this subsection, “excess
electric energy” means electric energy not used by the district to meet its own
electric pumping requirements.
     (3) The board of directors of the district
shall establish regulations governing electric energy generation and sale under
this section.
     (4) Electricity shall be sold under this
section only at wholesale. [1981 c.420 §3; 1985 c.561 §5; 1995 c.195 §44; 2003
c.802 §80; 2005 c.22 §381]
     543.662
Authority of district to develop joint project with private person;
restrictions. A district may
contract with a private person to enlarge or modify the districtÂ’s water system
for the purpose of generating hydroelectric power. The district shall retain
sufficient benefit and interest in, and control of a joint project as necessary
for the project to be considered a district project. A district and a private
person developing a joint project under ORS 543.650 to 543.685 must comply with
the rules adopted by the Water Resources Commission under ORS 543.664. [1985
c.561 §2]
     543.664
Rules relating to joint projects of districts and private persons. The Water Resources Commission shall
establish rules necessary to carry out the provisions of ORS 543.662. The rules
shall include the amount of control over and interest in a joint project a
district must retain in order to receive the benefit of the municipal
preference and proceed under the municipal application process set forth in ORS
chapter 537. [1985 c.561 §3]
     543.665
Authority to issue revenue bonds to acquire hydroelectric facilities. (1) In addition to any other authority under
its principal Act to issue bonds, a district, when authorized at any properly
called election, shall have the power to sell and dispose of revenue bonds to
construct or acquire hydroelectric facilities in conformance with ORS 543.650
to 543.685 to develop the hydroelectric generation capabilities of the water
system, and to pledge as security therefor all or any part of the unobligated
net revenue of the district or system.
     (2) Revenue bonds may be issued by a
district to construct or acquire hydroelectric facilities in connection with
its water system in conformance with ORS 543.650 to 543.685, including, but not
limited to, dams, canals, generating plants, transmission lines, other power
equipment and acquire the necessary property and rights therefor, for the
purpose of generating hydroelectric energy.
     (3) The revenue bonds authorized by this
section shall be issued in the same manner and form as are general obligation
bonds of the district, but they shall be payable, both as to principal and
interest, from revenues only, as specified by this section. The revenue bonds
shall not be subject to the percentage limitation applicable to general
obligation bonds and shall not be a lien upon any of the taxable property
within the corporate limits of such district, but shall be payable solely from
such part of the revenues of the district as remain after payment of
obligations having a priority and of all expenses of operation and maintenance
of the district, including any taxes levied against it. All revenue bonds shall
contain a clause reciting that both the principal and interest are payable
solely from operating revenues of the district remaining after paying such
obligations and expenses. [1981 c.420 §4; 1985 c.561 §6]
     543.670
Manner of issuance of revenue bonds. All revenue bonds issued under ORS 543.665 shall be issued as
prescribed in ORS chapter 287A, but the requirements of ORS 287A.150 do not
apply. [1981 c.420 §5; 1983 c.557 §12; 2007 c.783 §216]
     543.675
Power of eminent domain not to be exercised to acquire hydroelectric
facilities. Notwithstanding
any powers of eminent domain and condemnation given to a district under its
principal Act, a district shall not exercise any power of condemnation or
eminent domain to condemn, appropriate or acquire real property for the purpose
of constructing, acquiring, operating or maintaining hydroelectric facilities. [1981
c.420 §6]
     543.680
Compliance with water appropriation laws required. A district shall comply with all applicable
provisions of ORS chapter 537 before enlarging or modifying the districtÂ’s
water system for the purpose of generating hydroelectric energy. [1981 c.420 §7;
1985 c.561 §7]
     543.685
District board to require weatherization; Weatherization Fund; purpose. (1) If the board of directors of a district
has not adopted an ordinance, resolution or administrative rule requiring the
weatherization of the buildings of the district, the district shall deposit 10
percent of any revenues derived from the sale of excess electric energy under
ORS 543.660 with the officer serving as the treasurer of the district to be
credited to a special fund designated its Weatherization Fund. Moneys in the
fund shall be expended upon written order of the board of directors for the
sole purpose of accomplishing weatherization of buildings owned by the
district.
     (2) As used in this section, “weatherization”
means the installation of materials, equipment or fixtures designed primarily
to improve the efficiency of space heating and energy utilization of a
building. [1981 c.420 §8]
POWER
DEVELOPMENT FEES
     543.705
Definitions for ORS 543.710 to 543.730. As used in ORS 543.710 to 543.730, “claimant” means any person
claiming the right to the use of water for power development. [1957 c.333 §1]
     543.710
Annual fee based on horsepower; exemptions; disbursement. Every claimant other than a licensee under
ORS 543.010 to 543.610 shall on or before January 1 of each year pay to the
state in advance an annual fee based upon the theoretical water horsepower
claimed under each separate claim to water, graduated as follows: Thirty cents
for each theoretical water horsepower or fraction thereof up to and including
50 and 28 cents for each theoretical water horsepower or fraction thereof in
excess of 50. However, upon filing the statement provided in ORS 543.720, the
United States or the state, claiming the right to the use of water to any
extent for the generation of power, or any other claimant to the right to use
water for the generation of 10 theoretical water horsepower or less, shall be
exempted from the payment of all fees provided for in this section. Four cents
of each 28 cents collected as an annual fee under this section shall be
deposited to the Water Resources Department Hydroelectric Fund and disbursed to
the Department of Environmental Quality. [Amended by 1957 c.333 §2; 1965 c.185 §1;
1973 c.163 §5; 1997 c.449 §38; 1999 c.873 §24; 2001 c.104 §229]
     543.720
Payment of annual fee; accompanying statement; penalty for nonpayment of fees
or nonfiling; lien; foreclosure; effect of filing excessive claim; computation
of horsepower. (1) The fees
provided for in ORS 543.710 shall be paid to the Water Resources Commission in
advance, and shall be accompanied by a written statement showing the extent of
the claim. The statement shall set forth the name and address of the claimant;
the name of the stream from which the water is appropriated or claimed for
power development; a description of the 40 acres, or smallest legal subdivision
in which the point of diversion and point of return are located; the date of
the right as claimed; the maximum amount of water claimed expressed in cubic
feet per second of time; the total average fall utilized under such claim; the
manner of developing power; and the use to which the power is applied. If the
regular flow is supplemented by water stored in a reservoir, the location of
the reservoir, its capacity in acre-feet and the stream from which it is filled
and fed, should be given, also the date of the right as claimed, for storage
purposes.
     (2) If any claimant fails or neglects to
file the statement or to pay the fees within the time specified, the fees due
and payable shall be the amount specified in ORS 543.710 increased 25 percent.
The state shall have a preference lien for the fees due, together with interest
at the rate of 10 percent per annum from date of delinquency, upon the property
of the claimant used, or necessary for use, in the development of the right or
claim, together with any improvements erected on the property for such development.
Upon notice from the commission, the Attorney General shall foreclose the lien
and collect the amount due, as provided in this section, in the same manner as
other liens on real property are foreclosed.
     (3) The filing of a claim to water in
excess of the amount to which the claimant is legally entitled shall not
operate to vest in the claimant any right to the use of such excess water, nor
shall the payment of the annual license fee provided for in ORS 543.710 operate
to vest in any claimant any right to the use of such water beyond the amount to
which claimant is legally entitled. The filing of any such claim to water shall
be conclusive evidence as to the abandonment by the claimant of all rights to
water for power purposes in excess of the claim as filed.
     (4) The amount of theoretical water
horsepower upon which fees shall be paid under the provisions of ORS 543.710
and 543.720 shall be computed by multiplying the maximum amount of water
claimed, expressed in cubic feet per second, by the average total fall
utilized, expressed in feet, and dividing the product by 8.8. [Amended by 1985
c.673 §163]
     543.725 [1985 c.674 §9; repealed by 1991 c.869 §15]
     543.730
Failure to file statement or pay fees as evidence of abandonment of claim;
cancellation of claim, permit and water right certificate. (1) Failure of any claimant for a period of
five successive years ending after August 20, 1957, to file the written
statement showing the extent of the claim as required by ORS 543.720, or
failure of any claimant for a period of five successive years ending after
August 20, 1957, to pay the annual license fee as required by ORS 543.710,
shall be conclusive evidence of the abandonment by the claimant of the claim
and of all right to water for power purposes in connection with such claim.
     (2) When a claim is abandoned under the
provisions of subsection (1) of this section, or whenever a claimant has
voluntarily authorized, in writing, the cancellation of a claim or the water
right in connection therewith, the Water Resources Commission shall:
     (a) Cancel the claim on the records of the
Water Resources Department.
     (b) Cancel any permit to appropriate water
or any water right certificate issued in connection with such claim. [1957
c.333 §3; 1979 c.67 §7; 1985 c.673 §164]
USE OF
EXISTING WATER RIGHT FOR HYDROELECTRIC PURPOSES
     543.760
Definition of water right.
As used in ORS 543.765, “water right” means a water use established by an
adjudication under ORS chapter 539 as evidenced by a court decree or a
certificated ground water or surface water right that is issued for some use
other than for hydroelectric power and that serves as the underlying water
right for an application to use water for hydroelectric purposes. [2007 c.657 §1]
     Note: 543.760 and 543.765 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
543 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     543.765
Certificate to use water for hydroelectric purposes; expedited application
process; fees. (1)
Notwithstanding ORS 537.145 and ORS chapter 543, the holder of a water right
may apply to the Water Resources Department for a certificate to use water for
hydroelectric purposes within an artificial delivery system under the applicantÂ’s
existing water right. If the proposed hydroelectric project qualifies for a
Federal Energy Regulatory Commission exemption, the applicant may use the
expedited application process under this section.
     (2) An application, which shall be on a
form provided by the department, for a hydroelectric certificate under this
section must include:
     (a) The certificate number, or decree
reference if no confirming certificate has been issued, of the applicantÂ’s
existing water right associated with the proposed hydroelectric project.
     (b) A copy of a Federal Energy Regulatory
Commission exemption application, if applicable.
     (c) A proposed schedule of annual water
use and an estimate of the maximum power generation of the proposed hydroelectric
project.
     (d) A statement by the applicant that the
amount of water used by the proposed hydroelectric project will not exceed the
amount authorized and used under the applicantÂ’s existing water right for
beneficial use without waste.
     (e) A statement that the applicant owns or
otherwise controls the water conveyance system.
     (f) An application processing fee of $500.
The department shall deposit fees collected under this section into the Water
Resources Department Hydroelectric Fund established pursuant to ORS 536.015.
     (g) A map or drawing and all other data
concerning the proposed hydroelectric project, as may be prescribed by the
department. The map or drawing must be of sufficient quality and scale to
establish the location of the existing point of diversion and the proposed
location of the hydroelectric facility.
     (h) If the water to be used for the
proposed hydroelectric project is delivered by a public entity other than the
applicant for a certificate under this section, a statement from that entity
that the entity will be able to deliver water as described in the application.
     (i) Evidence that the water has been used
over the past five years according to the terms and conditions of the applicantÂ’s
existing water right described in paragraph (a) of this subsection.
     (3) If an applicant provides the
information required by subsection (2) of this section:
     (a) The Water Resources Department shall
provide notice to both the State Department of Fish and Wildlife and the
public, and provide a 30-day period for public comment.
     (b) The Water Resources Department may
issue a final order and certificate to use water for hydroelectric purposes
upon making a final determination that the proposed hydroelectric use does not
impair, or is not detrimental to, the public interest in the manner provided in
ORS 537.170 (8).
     (4) If the Water Resources Department
determines that public interest issues have been identified, the department
shall issue a final order denying the application. The department shall also issue
a final order denying the application if the department identifies issues
related to the public interest. If the applicant does not appeal the final
order as provided in ORS chapter 183 and, within one year of the departmentÂ’s
final order denying the applicantÂ’s application, files an application with the
department for a preliminary permit to operate a hydroelectric project as
provided in ORS 537.130 and 543.210, the applicant shall receive a credit
toward the applicantÂ’s application fees in the amount of $500.
     (5) At a minimum, a certificate issued
under this section must contain the following conditions:
     (a) Fish screens, by-pass devices and fish
passages as required by the State Department of Fish and Wildlife.
     (b) That use of water be limited to periods
when the applicantÂ’s existing water right is put to beneficial use without
waste and that the amount used is not greater than the quantity of water
diverted to satisfy the authorized specific use under the existing water right
described in subsection (2)(a) of this section.
     (c) That use of water be limited by rate,
duty, season and any other limitations of the applicantÂ’s existing water right
described in subsection (2)(a) of this section.
     (d) That the applicant measure and report
the quantity of water diverted.
     (e) Any other conditions the Water
Resources Department deems necessary to protect the public interest.
     (f) That the restrictions established in
ORS 543.660 shall apply as conditions of use to a certificate issued under this
section to a district as defined in ORS 543.655.
     (g) That a certificate issued under this
section shall be invalidated upon a change in the point of diversion of the
existing water right described in subsection (2)(a) of this section.
     (h) The Water Resources Department shall
conduct a review of certificates issued under this section and shall issue a
final order and a superseding certificate that corresponds to any changes or
adjustments made to the applicantÂ’s existing water right described in
subsection (2)(a) of this section.
     (i) That the right to use water under a
certificate issued under this section is invalidated if the Federal Energy
Regulatory Commission exemption related to the certificate is canceled or
invalidated.
     (6) A certificate issued under this section
may not have its own priority date. The department may not regulate for or
against any certificate issued under this section based on the priority date of
the certificate.
     (7) A certificate issued under this
section does not grant a right to divert water for hydroelectric purposes.
     (8) A certificate issued under this
section may not be included in the determination of injury to other water
rights pursuant to ORS chapter 540.
     (9) A certificate issued under this
section is subject to review 50 years after the date of issuance and pursuant
to the terms described in this section.
     (10) Failure to fully develop and put to
use a certificate issued under this section within five years of issuance
invalidates the hydroelectric certificate.
     (11) If a certificate under this section
is issued, the certificate holder must pay fees consistent with the fees
described in ORS 543.078. Failure to pay a required fee invalidates a
certificate issued under this section.
     (12) The department shall issue invoices
for fees required under this section, and the state shall have a preference
lien for delinquent fees, as provided in ORS 543.082.
     (13) An applicant for a certificate issued
under this section must provide evidence of a Federal Energy Regulatory
Commission exemption before a certificate can be issued, if applicable.
     (14) Nothing in this section shall alter
the preference of municipalities in ORS 543.260 (3) and 543.270. [2007 c.657 §2]
     Note: See note under 543.760.
     543.810 [Repealed by 2001 c.369 §9]
     543.820 [Amended by 1985 c.565 §83; 2001 c.104 §230;
repealed by 2001 c.369 §9]
     543.830 [Repealed by 2001 c.369 §9]
PENALTIES
     543.990
Penalties. (1) Violation of
ORS 543.530 (3) is punishable, upon conviction, by a fine of not more than
$5,000, or by imprisonment for not more than one year, or both.
     (2) Violation of any of the provisions of
ORS 543.010 to 543.610, or any of the conditions made a part of any license
issued under ORS 543.010 to 543.610, or any subpoena of the Water Resources
Commission or of an administrative law judge or any person designated by the
commission to take testimony, any lawful order or rule of the commission is a
Class B misdemeanor.
     (3) Any person who willfully and knowingly
gives false testimony concerning a material matter in any hearing before the
commission, an administrative law judge or any person designated by the
commission to take testimony, or in any deposition or affidavit to be used in a
matter pending before the commission or administrative law judge, or willfully
and knowingly verifies a false statement or report filed with the commission,
shall be guilty of perjury and may be prosecuted and punished as otherwise
provided by law for the prosecution and punishment of perjury. [Amended by 1955
c.673 §5; 1985 c.673 §165; 1999 c.849 §117; 2003 c.75 §99]
_______________
Disclaimer: These codes may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.