2007 Oregon Code - Chapter 543a :: Chapter 543A - Reauthorizing and Decommissioning Hydroelectric Projects
Chapter 543A
— Reauthorizing and Decommissioning
Hydroelectric
Projects
2007 EDITION
REAUTHORIZATION OF HYDROELECTRIC PROJECTS
WATER LAWS
GENERAL PROVISIONS
543A.005Â Definitions
543A.010Â Findings
543A.015Â Purpose
543A.020Â Policy
543A.025Â Minimum
standards for decision on reauthorization of water right; rules
WATER RIGHT APPLICATION PROCESS FOR
REAUTHORIZING A STATE PROJECT
543A.030Â Notice
of intent
543A.035Â Reauthorization
application and public comment
543A.040Â Process
determination
543A.045Â Public
scoping meeting
543A.050Â Application
report
543A.055Â Hydroelectric
Application Review Team review of application; draft proposed final order;
public comment
WATER RIGHT APPLICATION PROCESS FOR REAUTHORIZING A FEDERALLY LICENSED
PROJECT
543A.060Â Coordination
of state and federal reauthorization processes
543A.065Â Changes
to expiration date of water right for existing project
543A.071Â Water
Resources Department notification to holder of hydroelectric license or water
right for hydroelectric purposes; response of holder
543A.075Â Notice
of intent to apply for reauthorization of right to use water for hydroelectric
purposes
543A.080Â Submission
of preliminary application information
543A.085Â Public
scoping meeting
543A.090Â Mid-study
status report; public meeting; period for comment on status report
543A.095Â Draft
application
543A.100Â Final
application for water right; application for water quality certification
543A.105Â Hydroelectric
Application Review Team review of final application; unified state position in
federal proceeding
543A.110Â Water
quality certification
543A.115Â Final
unified state position
PROCESS FOR COMPLETING REAUTHORIZATION OF WATER RIGHT FOR EITHER STATE
OR FEDERALLY LICENSED PROJECT
543A.120Â Proposed
final order
543A.125Â Approval
or rejection of application for reauthorization
543A.130Â Contested
case hearing; final order
543A.135Â Exceptions
to final order
543A.140Â Terms,
limitations and conditions of water right
543A.145Â Water
right certificate
543A.150Â Modification
of time limits
DECOMMISSIONING
543A.300Â Decommissioning;
rules
543A.305Â Conversion
of hydroelectric water right to in-stream water right; exceptions
HYDROELECTRIC APPLICATION REVIEW TEAM
543A.400Â Duties
of Hydroelectric Application Review Team
FEES AND EXPENSES
543A.405Â Application
fees
543A.410Â Fee
schedule; appeal
543A.415Â Reauthorization
fee
MISCELLANEOUS
543A.800Â Effect
of hydroelectric reauthorization process on existing rights
543A.805Â Reference
to licensee or license
543A.810Â Effect
of amendment or repeal of law
GENERAL PROVISIONS
     543A.005
Definitions. As used in ORS
543A.005 to 543A.415:
     (1) “Commission” means the Water Resources
Commission.
     (2) “Department” means the Water Resources
Department.
     (3) “Director” means the Water Resources
Director.
     (4) “Federally licensed project” means an
existing project licensed under ORS 543.260 that is also licensed by and has
been or will be reviewed by the Federal Energy Regulatory Commission under the
Federal Power Act, as amended.
     (5) “Project” has the meaning given in ORS
543.010.
     (6) “State project” means an existing
project for which the authority to operate is a time-limited water right for
the use of water for hydroelectric purposes and that is not licensed by the
Federal Energy Regulatory Commission. “State project” includes a project
granted an exemption by the Federal Energy Regulatory Commission.
     (7) “Team” means a Hydroelectric
Application Review Team established pursuant to ORS 543A.035, 543A.075 or
543A.300.
     (8) “Water right” includes the use of
water for hydroelectric purposes pursuant to a license issued under ORS
543.260. [1997 c.449 §1]
     543A.010
Findings. The Legislative
Assembly finds that many hydroelectric projects within the state hold water
rights for hydroelectric purposes for a limited time period, and that those
water rights will expire. State law does not currently prescribe a means for
reauthorizing the use of water for hydroelectric purposes. Therefore, the
Sixty-eighth Legislative Assembly created a hydroelectric task force to
recommend a process and standards for a coordinated state review of existing
facilities. The hydroelectric task force was composed of representatives of
interested state agencies, investor-owned utilities, publicly owned utilities,
municipalities, environmental organizations, agricultural organizations and
nonutility owners of hydroelectric projects. In its report to the Sixty-ninth
Legislative Assembly, the hydroelectric task force included legislative
recommendations that served as the foundation for the provisions of this
chapter and ORS 468.065, 468B.040, 468B.045, 468B.046, 536.015, 536.050,
543.012 and 543.710. [1997 c.449 §2]
     543A.015
Purpose. It is the purpose
of this chapter and ORS 468.065, 468B.040, 468B.045, 468B.046, 536.015, 536.050,
543.012 and 543.710 to establish a process for developing a coordinated state
position to be reflected in governmental proceedings related to the
reauthorization of existing hydroelectric facilities. The coordinated state
position shall be reflected in state decisions, including but not limited to
decisions relating to the allocation of water, certification of water quality
and other state regulatory actions, as well as in state comments on federal
actions, including relicensing by the Federal Energy Regulatory Commission. [1997
c.449 §3]
     543A.020
Policy. The Legislative
Assembly declares that it is the policy of the State of
     (1) To reauthorize the use of water by
existing projects provided that such projects meet the standards established in
ORS 543A.025, are consistent with other applicable state laws and will not
impair or be detrimental to the public interest.
     (2) To recognize that existing projects
have resulted in both benefits and costs to society, and that the opportunity
exists on reauthorization to promote the public benefits while minimizing the
public costs.
     (3) To maintain or enhance the natural
resources of the state and to protect the natural resources of the state from
adverse impacts caused by the continued existence of a project.
     (4) To protect the health and safety of
the residents of the state.
     (5) To require the Water Resources
Department and other affected state agencies to conduct a coordinated review of
projects seeking reauthorization in order to develop a unified state position
in any local, state or federal proceedings related to the reauthorization of
hydroelectric projects. [1997 c.449 §4]
     543A.025
Minimum standards for decision on reauthorization of water right; rules. (1) Following the process set forth in ORS
543A.005 to 543A.410, the Water Resources Director shall issue a water right
for continued operation of an existing hydroelectric project upon a finding
that the proposed use will not impair or be detrimental to the public interest,
considering:
     (a) Conserving the highest use of the
water for all purposes, including irrigation, domestic use, municipal water
supply, power development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial purposes, navigation,
scenic attraction or any other beneficial use to which the water may be applied
for which it may have a special value to the public.
     (b) The maximum economic development of
the waters involved.
     (c) The control of the waters of this
state for all beneficial purposes, including drainage, sanitation and flood
control.
     (d) The amount of waters available for
appropriation for beneficial use.
     (e) The prevention of wasteful,
uneconomic, impracticable or unreasonable use of the waters involved.
     (f) All vested and inchoate rights to the
waters of this state or to the use of the waters of this state, and the means
necessary to protect such rights.
     (g) The state water resources policy
formulated under ORS 536.295 to 536.350 and 537.505 to 537.534.
     (2) In determining whether the proposed
use will impair or be detrimental to the public interest, the following minimum
standards shall apply:
     (a) For impacts to fish and wildlife
resources attributable to the project, the Water Resources Department shall require:
     (A) Mitigation for:
     (i) Adverse impacts that occur due to new
construction or operational changes to the project; and
     (ii) Ongoing adverse impacts existing at
the time of reauthorization; and
     (B) Appropriate measures to promote
restoration and rehabilitation of fish and wildlife resources to support goals
expressed in statute or in standards, plans, guidelines and policies adopted by
rule by the State Fish and Wildlife Commission.
     (b) All conditions included in a water
right certificate issued to reauthorize the use of water for hydroelectric
purposes shall be consistent with any plan adopted by the Pacific Northwest
Electric Power and Conservation Planning Council for the protection, mitigation
and enhancement of the fish and wildlife resources of the region.
     (c) The project shall comply with water
quality standards adopted by the Environmental Quality Commission.
     (d) The project shall not endanger the
public health and safety. The project shall be operated in a manner that
provides practical protection from vulnerability to seismic and geologic
hazards.
     (e) Wetland resources shall be protected,
maintained or enhanced. The Water Resources Department shall impose conditions
on reauthorization consistent with this paragraph after considering impacts to
wetland resources associated with the project, including wetlands lost or
created by construction and operation of the project, and mitigation proposed
by the applicant. Reauthorization that results in a net loss to existing
wetland resources shall not be approved.
     (f) Other resources in the project
vicinity including recreational opportunities, scenic and aesthetic values,
historic, cultural and archaeological sites, and botanical resources shall be
protected, maintained or enhanced. The department shall impose conditions on
reauthorization consistent with this paragraph after considering impacts to
such resources associated with the project, including resources lost or created
by construction and operation of the project, and mitigation proposed by the
applicant. If the project results in a net loss to existing resources,
reauthorization shall not be approved.
     (3) In determining the mitigation,
restoration and rehabilitation measures required under subsection (2) of this
section, the Water Resources Department shall consider historic impacts,
ongoing impacts and projected future impacts of the project and the existence
and success of past mitigation measures associated with the project. Required
mitigation, restoration and rehabilitation may include measures to restore or
replace the benefits of historic resource conditions in order to meet resource
goals contained in standards, plans, guidelines and policies adopted by rule by
the State Fish and Wildlife Commission and in rules adopted by other state
agencies with regulatory or advisory responsibility for the project.
     (4) The Water Resources Commission shall
adopt all rules necessary to carry out the policy set forth in ORS 543A.020 and
to implement the minimum standards set forth in subsection (2) of this section.
In the absence of implementing rules, the department may act on applications
for reauthorization of a project subject to the standards set forth in this
section.
     (5) As used in this section, “mitigation”
means addressing the adverse effects of a project proposed for reauthorization
by considering, in the following order of priority:
     (a) Avoiding the impact altogether by not
taking a certain development action or parts of that action;
     (b) Minimizing impacts by limiting the
degree or magnitude of the development action and its implementation;
     (c) Rectifying the impact by repairing or
rehabilitating the affected environment;
     (d) Reducing or eliminating the impact
over time by preservation or maintenance operations during the life of the development
action by monitoring and taking appropriate corrective measures; and
     (e) Compensating for the impact by
replacing or providing comparable substitute resources or environments. [1997
c.449 §5]
WATER RIGHT
APPLICATION PROCESS FOR REAUTHORIZING A STATE PROJECT
     543A.030
Notice of intent. (1) Not
later than three years before the expiration of a water right for a state
project, the Water Resources Department shall notify the project owner of the
expiration of the water right and request that the owner advise the department
whether the owner intends to seek reauthorization of the water right for the
state project.
     (2) If the owner does not intend to seek
reauthorization, the owner shall, within 90 days after receiving notice under
subsection (1) of this section, inform the department of the disposition of the
state project.
     (3) If the owner intends to seek
reauthorization, the owner shall, within 90 days after receiving notice under
subsection (1) of this section, submit to the department a notice of intent to
file an application for reauthorization of the water right. The notice of
intent shall:
     (a) Include a statement of the applicant’s
intent to continue operation of the state project; and
     (b) Describe the state project, including
but not limited to the location and capacity of the state project and the
identification of affected Indian tribes and local government entities.
     (4) The department shall cause public
notice to be given upon receipt of a notice of intent. The public notice shall
include the date of expiration of the water right and a description of the
state project.
     (5) Only the project owner may apply to
reauthorize the water right for a state project. [1997 c.449 §6]
     543A.035
Reauthorization application and public comment. (1) Within 60 days after submitting a notice
of intent under ORS 543A.030, the applicant shall submit to the Water Resources
Department an application to reauthorize the water right for the state project
on a form prescribed by the department.
     (2) The reauthorization application for a
water right for the use of water for hydroelectric purposes shall set forth:
     (a) The name and post-office address of
the applicant;
     (b) The location of the project by county
and stream and, when appropriate, by city or nearby city;
     (c) The amount of water in cubic feet per
second;
     (d) The theoretical water horsepower; and
     (e) Any other information required in the
application form.
     (3) Upon receipt of a reauthorization
application for the use of water for hydroelectric purposes, the Water
Resources Department shall convene the Hydroelectric Application Review Team
for the state project. The team shall consist of representatives of the Water
Resources Department, the Department of Environmental Quality and the State
Department of Fish and Wildlife and may include a representative of any other
state agency that has regulatory or advisory responsibility for the state
project or a resource or hazard affected by the state project.
     (4) Within seven days after receiving a
reauthorization application under subsection (3) of this section, the
department shall notify any person who responded to the notice of intent and
give public notice of the application in the weekly notice published by the
department. The notice shall include a request for comments on the application
and information pertaining to how an interested person may obtain future
notices about the application and participate in the reauthorization process.
     (5) Within 45 days after the public notice
under subsection (4) of this section, any person interested in the application
shall request future notices about the state project and may submit written
comments to the department. [1997 c.449 §7]
     543A.040
Process determination. (1)
Within 60 days after the close of the period allowed for public comment under
ORS 543A.035, the Hydroelectric Application Review Team shall determine whether
the reauthorization application for the water right contains sufficient
information to determine whether reauthorization of the state project will
comply with ORS 543A.025.
     (2) If the team decides that sufficient
information is available to determine whether reauthorization of the water
right for the state project will comply with ORS 543A.025, the team shall
proceed with expedited processing of the reauthorization application. The team
shall review the application and any public comments received on the
application and prepare a draft proposed final order, including findings of
fact and conclusions of law, for the water right. Upon completion of the draft
proposed final order, the team shall give public notice of the draft proposed
final order in the weekly notice published by the Water Resources Department.
The notice shall include a request for comments on the draft proposed final
order.
     (3) Within 60 days after the public notice
under subsection (2) of this section, any person interested in the draft
proposed final order shall submit written comments to the team. A person who
submits written comments under this subsection shall identify the provision of
the draft proposed final order in question and specify why the person objects
to or supports the provision. The team shall review the comments received and
may revise the draft proposed final order. Unless the department receives a
request under subsection (4) of this section, the team shall submit a proposed
final order to the department within 30 days after the close of the period for
public comment on the draft proposed final order.
     (4) If the draft proposed final order
prepared by the team under subsection (2) of this section proposes to deny the
application for reauthorization of the water right, the applicant may request
the department to process the application in accordance with ORS 543A.045 to
543A.055. The applicant shall submit a request under this subsection within the
60-day period allowed for public comment on the draft proposed final order.
     (5) Unless the department receives a
request under subsection (4) of this section, the department shall issue the
proposed final order in accordance with the provisions of ORS 543A.120 to
543A.300.
     (6) If the team determines that additional
information is necessary to determine whether reauthorization of the state
project will comply with ORS 543A.025, the applicant shall comply with the
process established in ORS 543A.045 to 543A.055 and 543A.120 to 543A.300. [1997
c.449 §8]
     543A.045
Public scoping meeting. (1)
If the Hydroelectric Application Review Team finds additional information is
necessary to complete the reauthorization process, the applicant, in
conjunction with the team, shall convene a public scoping meeting.
     (2) The applicant shall be responsible for
conducting the public scoping meeting. The team, federal agencies, federally
recognized Indian tribes and members of the public shall be invited to
participate. The purpose of the public scoping meeting shall be to allow an
opportunity for the participants to review the information available and to:
     (a) Discuss a proposed schedule for
completion of the reauthorization process;
     (b) Discuss studies and additional
information that may be needed; and
     (c) Identify other resources and other
health and safety issues of the state that must be considered in the
reauthorization process.
     (3) At the public scoping meeting, the
team shall:
     (a) Explain to the public the process for
reauthorizing the state project; and
     (b) Identify to the public the members of
the team.
     (4) Within 90 days after the public
scoping meeting, the team shall publish notice of the availability of the plan
for completing the review process, including a time schedule. The plan shall be
developed by the Water Resources Department in consultation with the applicant.
[1997 c.449 §9]
     543A.050
Application report. In
accordance with the schedule established pursuant to ORS 543A.045, and after
conducting the studies and collecting the additional information identified at
the public scoping meeting under ORS 543A.045, the applicant shall prepare an
application report and file the report with the Hydroelectric Application
Review Team. The application report shall include study results, proposed
mitigation measures, applicable state statutes and rules and any necessary
changes to the operation of the hydroelectric project required to comply with
such statutes and rules. [1997 c.449 §10]
     543A.055
Hydroelectric Application Review Team review of application; draft proposed final
order; public comment. (1)
The Hydroelectric Application Review Team shall review the application report
prepared under ORS 543A.050 and prepare a draft proposed final order approving
or denying the reauthorization of the water right. The draft proposed final
order shall include the findings required for a proposed final order under ORS
543A.120. Upon completion of the draft proposed final order, the Water Resources
Department shall give public notice of the draft proposed final order in the
weekly notice published by the department. The notice shall include a request
for comments on the draft proposed final order.
     (2) Within 60 days after the public notice
under subsection (1) of this section, any person interested in the draft
proposed final order shall submit written comments to the team.
     (3) Within 30 days after the close of the
period for public comment on the draft proposed final order, the team shall
make any revisions necessary in response to comments received and submit a
proposed final order to the department.
     (4) The department shall complete the
reauthorization process in accordance with the provisions of ORS 543A.120 to
543A.300. [1997 c.449 §11]
WATER RIGHT
APPLICATION PROCESS FOR REAUTHORIZING A FEDERALLY LICENSED PROJECT
     543A.060
Coordination of state and federal reauthorization processes. (1) For a federally licensed project, the
Water Resources Department and the Hydroelectric Application Review Team shall
conduct the state reauthorization review, to the maximum extent feasible, in a
manner that is consistent with and avoids duplication of federal agency review.
Such coordination shall include, but need not be limited to:
     (a) Whenever feasible, elimination of
duplicative application, study and reporting requirements;
     (b) Hydroelectric Application Review Team
use of information generated and documents prepared for the federal agency
review;
     (c) Development with the federal agency
and reliance on a joint record to address applicable state standards;
     (d) Whenever feasible, joint hearings and
issuance of a state water right decision in a time frame consistent with the
federal agency review; and
     (e) To the extent consistent with
applicable state standards, establishment of conditions in any state
hydroelectric water right that are consistent with the conditions established,
or required to be incorporated into licensing, by the federal agency.
     (2) In order to better coordinate with the
review of the project by the Federal Energy Regulatory Commission, the team
may, at the request of an applicant, make changes to the process set forth in
ORS 543A.060 to 543A.115, if the changes do not diminish opportunities for
public input otherwise provided by ORS 543A.060 to 543A.115. [1997 c.449 §12]
     543A.065
Changes to expiration date of water right for existing project. (1) Notwithstanding the expiration date set
forth in a water right for an existing federally licensed project, upon the
request of the holder of the water right, the Water Resources Department may:
     (a) Extend the expiration date of the
water right, for a period of up to 15 years, to correspond to the expiration
date of the federal license for the project; or
     (b) Process an application for reauthorization
of the water right prior to the actual expiration date of the water right in
order to correspond with the expiration of the federal license for the project.
     (2) For a project with a water right that
expires more than 15 years before the expiration date of the federal license
for the project, the Hydroelectric Application Review Team shall evaluate the
project under the process and standards established in ORS 543A.005 to 543A.025
and 543A.060 to 543A.410 for a state project. A reauthorized water right for
such a project may be for a term concurrent with the federal license. [1997
c.449 §13]
     543A.070 [1997 c.449 §14; repealed by 1999 c.873 §14
(543A.071 enacted in lieu of 543A.070)]
     543A.071
Water Resources Department notification to holder of hydroelectric license or
water right for hydroelectric purposes; response of holder. (1) Not later than six years before the
expiration of any state or federal hydroelectric license or state authorized
water right issued to a federally licensed project, the Water Resources
Department shall notify the holder of the date of expiration of the right or
license and shall ask that the holder advise the department whether the holder
intends to seek reauthorization or relicensing.
     (2) If the holder does not intend to seek
reauthorization, the holder shall inform the department within 90 days after
receiving notice under subsection (1) of this section of the proposed
disposition of the federally licensed project.
     (3) If the holder intends to seek
reauthorization, the holder shall inform the department within 90 days after
receiving notice under subsection (1) of this section whether the holder
intends to seek reauthorization of the water right concurrently with the
federal relicensing.
     (4) A holder seeking relicensing and
reauthorization concurrently:
     (a) Shall not, by applying for
reauthorization, under ORS 543A.075 and in the absence of agreement by the
holder, be deemed to have accelerated the actual expiration date of the projectÂ’s
water right; and
     (b) May, upon providing concurrent
notification to the Federal Energy Regulatory Commission, withdraw and void its
application for reauthorization at any time prior to issuance of the final
water right certificate issued by the Water Resources Director without prejudice
to its right to reapply for reauthorization of its water right.
     (5) Any water right issued by the Water
Resources Department pursuant to an application filed under this chapter shall
become effective upon the issuance of the new water right. The existing water
right shall be canceled immediately upon issuance of the new water right.
     (6) A holder not electing to concurrently
seek reauthorization but seeking relicensing shall notify the Water Resources
Department of its position and shall indicate in the notification its plans for
the project and the projectÂ’s state water right.
     (7) In the absence of agreement by the
holder to pay the application fees under ORS 543A.405, and notwithstanding the
provisions of ORS 543A.015, the state is not required to develop and provide a
coordinated state position. [1999 c.873 §15 (enacted in lieu of 543A.070)]
     543A.075
Notice of intent to apply for reauthorization of right to use water for
hydroelectric purposes. (1)
Each person operating an existing federally licensed project and intending to
apply for reauthorization shall submit to the Water Resources Department a
notice of intent to file an application for reauthorization of the water right
for the project. If the person intends to seek reauthorization concurrently
with federal relicensing, the notice of intent shall be submitted at the same
time the person provides the information to the department under ORS 543A.071
(3). The notice of intent shall include:
     (a) The name and post-office address of
the applicant;
     (b) The federal project number;
     (c) The expiration date of the federal
license and state water right for the project;
     (d) An unequivocal statement of the
applicantÂ’s intention to file an application for reauthorization of the state
water right;
     (e) The location of the project by county
and stream and, when appropriate, by city or nearby city;
     (f) The amount of water in cubic feet per
second; and
     (g) The project capacity.
     (2) Upon receipt of a notice of intent
under subsection (1) of this section, the department shall:
     (a) Convene the Hydroelectric Application
Review Team for the project. The team shall consist of representatives of the
Water Resources Department, the Department of Environmental Quality and the
State Department of Fish and Wildlife and may include a representative of any
other agency that has regulatory or advisory responsibility for the project or
a resource or hazard affected by the project.
     (b) Provide public notice of the receipt
of the notice of intent. The public notice shall provide the date of the public
scoping meeting to be conducted under ORS 543A.085 and include a description of
the hydroelectric project, the location of the project, the expiration dates of
the water right for the project and the Federal Energy Regulatory Commission
license for the project, and information pertaining to how an interested person
may obtain future notices about the application and participate in the
reauthorization process.
     (3) Any person who is authorized by the
Federal Energy Regulatory Commission to apply for a license for a federally
licensed project may apply to reauthorize a water right for the project. The
team shall process such applications under the standards and process set forth
in ORS 543A.060 to 543A.300 for a federally licensed project. A nonowner
applicant may obtain a water right with the priority date of the expiring water
right only if the applicant submits a notice of intent within six months after
the owner submits a preliminary application as described in ORS 543A.080, or
within 30 days after June 30, 1997, whichever is later. [1997 c.449 §15; 1999
c.873 §16]
     543A.080
Submission of preliminary application information. Within 30 days after an applicant provides a
notice of intent under ORS 543A.075, the applicant shall provide to the Water
Resources Department a preliminary application, which shall be the first-stage
consultation document of the Federal Energy Regulatory Commission. The
preliminary application shall include the following information:
     (1) Detailed maps showing existing project
boundaries, if any, proper land descriptions of the entire project area by
township, range and section, and also showing the specific location of all
existing and proposed project facilities, including but not limited to roads,
transmission lines and other appurtenant facilities;
     (2) A general engineering design of the
existing project and any proposed changes, with a description of any existing
or proposed diversion of a stream through a canal or a penstock;
     (3) A summary of the existing operational
mode of the project and any proposed changes;
     (4) Identification of the environment
affected or to be affected, the significant resources and hazards present and
the applicantÂ’s existing and proposed environmental protection, mitigation and
enhancement plans, to the extent known at that time;
     (5) Streamflow and water information;
     (6) Detailed descriptions of any proposed
studies and the proposed methodologies to be employed; and
     (7) Any other information required in the
application form provided by the department. [1997 c.449 §16]
     543A.085
Public scoping meeting. (1)
Not less than 30 days but not more than 60 days after submitting the
preliminary application information as required under ORS 543A.080, the
applicant, in conjunction with the Hydroelectric Application Review Team, shall
convene a public scoping meeting. To the extent practicable, the applicant
shall conduct the public scoping meeting at the first stage of the Federal
Energy Regulatory Commission review of the federal license for the project.
     (2) The applicant is responsible for
conducting the public scoping meeting and shall invite the team, federal
agencies, federally recognized Indian tribes and members of the public to
participate. The purpose of the public scoping meeting is to allow an
opportunity for the participants to review the information available and to:
     (a) Discuss a proposed schedule for
completion of the reauthorization process;
     (b) Discuss studies and additional
information that may be needed; and
     (c) Identify other resources and other
health and safety issues of the state that must be considered in the
reauthorization process.
     (3) At the public scoping meeting, the
team shall:
     (a) Explain to the public the process for
reauthorizing the project; and
     (b) Identify to the public the members of
the team.
     (4) Following the public scoping meeting,
the team shall allow 60 days for public comment on the preliminary application
information, the proposed schedule, proposed studies and other resources and
other health and safety issues to be considered in the reauthorization process.
     (5) Within 90 days after the public
scoping meeting, the applicant shall develop and submit study proposals to the
team. Upon receipt of the proposals, the team and the applicant shall publish
notice of the availability of the proposals and allow 30 days for the public to
provide comments on the proposals.
     (6) Based on its review of the comments
and recommendations on the study proposals from the Hydroelectric Application
Review Team, other state agencies and local governments, federally recognized
Indian tribes and members of the public, the applicant shall prepare final
study proposals and methodology and submit the final study proposals and
methodology to the team. Upon receipt of the final study proposals and
methodology, the team shall make the applicantÂ’s study proposals and
methodology available to the public.
     (7) The study proposals shall allow at
least two years for completing the studies. [1997 c.449 §17; 2001 c.369 §1]
     543A.090
Mid-study status report; public meeting; period for comment on status report. (1) Upon completion of the first year of
studies, the applicant shall prepare a mid-study status report and present the
mid-study status report to all interested persons at a public meeting.
Following the public meeting, the Hydroelectric Application Review Team, other
state agencies and local governments, federally recognized Indian tribes,
federal agencies and members of the public shall have 30 days to comment on the
status report and suggest changes to the studies.
     (2) The applicant shall consider any
comments received in response to the mid-study status report and make any
necessary changes prior to completing the second year of studies. [1997 c.449 §18;
2001 c.369 §2]
     543A.095
Draft application. (1) Not
later than one year before the applicant files a final application with the
Federal Energy Regulatory Commission to reauthorize the federal license for the
hydroelectric project, the applicant shall file with the Hydroelectric
Application Review Team:
     (a) A draft application for a water right
for the project, which shall be the Federal Energy Regulatory Commission draft
application; and
     (b) Information regarding potential water
quality impacts of the project.
     (2) The applicant shall provide the team
with copies of any agency and public comment submitted to the applicant in the
Federal Energy Regulatory Commission proceedings or in the state
reauthorization proceedings.
     (3) The applicant shall include with the
application required under subsection (1) of this section the final report on
the studies conducted pursuant to ORS 543A.085.
     (4) Upon receipt of the draft application,
the team shall identify in writing to the applicant any informational and
analytical deficiencies. Subject to any identified deficiencies, the team shall
prepare a provisional state position on:
     (a) Whether, and under what conditions,
the Water Resources Department should issue the water right;
     (b) Whether the project would comply with
ORS 468B.040 and water quality standards adopted by the Environmental Quality
Commission, and what conditions might be appropriate under 33 U.S.C. 1341(d);
and
     (c) Recommendations to the Federal Energy
Regulatory Commission under 16 U.S.C. 803(j).
     (5) Upon completion of the provisional
state position, the team shall give public notice of the availability of the
provisional state position. The notice shall allow 30 days for the public to
comment on the provisional state position.
     (6) Based on comments received during the
30-day public comment period allowed under subsection (5) of this section, the
team may revise the provisional state position. The team also shall resolve any
conflict between agencies about the provisional state position.
     (7) After considering agency and public
comments, resolving interagency conflicts and making any necessary revisions,
but no later than 160 days before the date by which the final application must
be filed with the Federal Energy Regulatory Commission, the team shall provide the
applicant with the provisional unified position of the state. However, the
provisional unified position shall not constitute a final agency determination
or action under any authority. [1997 c.449 §19; 2001 c.369 §3]
     543A.100
Final application for water right; application for water quality certification. Not less than two years before the
expiration of the federal license for the project, the applicant shall submit
the final application to reauthorize the water right and a request for
certification under ORS 468B.040 and 33 U.S.C. 1341. The application submitted
under this section shall be the same as the final application submitted to the
Federal Energy Regulatory Commission for the new federal license for the
project. [1997 c.449 §20]
     543A.105
Hydroelectric Application Review Team review of final application; unified
state position in federal proceeding. (1) The Hydroelectric Application Review Team shall review the
applications submitted under ORS 543A.100 and prepare a second proposed unified
state position, which shall include:
     (a) A draft proposed final order approving
or denying the reauthorization of the water right, which shall include but need
not be limited to the findings required for a proposed final order under ORS
543A.120;
     (b) Proposed recommendations to the
Federal Energy Regulatory Commission under 16 U.S.C. 803(j);
     (c) A proposed coordinated state response
to the Federal Energy Regulatory Commission, including any additional
information requests and recommended conditions to be included in the federal
license for the project; and
     (d) Proposed recommendations for
certification of the project under ORS 468B.040 and 33 U.S.C. 1341, including
any proposed conditions under 33 U.S.C. 1341(d).
     (2) The team shall submit the second
proposed unified state position to the Department of Environmental Quality. The
team shall provide public notice and a 60-day opportunity for public comment on
the proposals required under subsection (1)(a) to (c) of this section. The
Department of Environmental Quality shall concurrently provide public notice
and a 60-day opportunity for public comment on the proposed water quality
certification decision and conditions required under subsection (1)(d) of this
section.
     (3) The team shall provide the second
proposed unified state position even if an application required under ORS
543A.100 contains incomplete or deficient information or analysis. The second
proposed unified state position may reflect the incomplete or deficient
information or analysis.
     (4) The team may submit to the Federal
Energy Regulatory Commission and the applicant any proposed state response,
recommendations, conditions or additional information requests, coordinated in
accordance with this chapter, at any time necessary to satisfy a deadline established
by the Federal Energy Regulatory Commission for the submission, even if the
procedures set forth in this section for the development of a second proposed
unified state position have not been completed. [1997 c.449 §21; 2001 c.369 §4]
     543A.110
Water quality certification.
(1) Upon completion of the public comment period for proposed recommendations
under ORS 543A.105 (1)(d), the Department of Environmental Quality shall
evaluate the request for water quality certification submitted under ORS 543A.100
in accordance with ORS 468B.040 and rules adopted under ORS 468B.040. The
Director of the Department of Environmental Quality shall act in accordance
with the proposed recommendations submitted by the Hydroelectric Application
Review Team under ORS 543A.105 (1)(d) unless the director finds, based upon
public comment or new information, that the project would not comply with water
quality standards adopted by the Environmental Quality Commission or would not
be consistent with other appropriate requirements of state law. If the directorÂ’s
proposed decision is not in accordance with the proposed recommendations
submitted by the team under ORS 543A.105 (1)(d), the director shall seek a
recommendation from the team before issuing a final decision on water quality
certification. The director shall consider any further recommendation from the
team, and issue a final certification decision to the applicant and to the
team.
     (2) As used in this section, “director”
means the Director of the Department of Environmental Quality. [1997 c.449 §21a;
2001 c.369 §5]
     543A.115
Final unified state position.
(1) Upon receipt of the Department of Environmental QualityÂ’s water quality
certification decision, the Hydroelectric Application Review Team shall prepare
a final unified state position. The final unified state position shall take
into consideration public comments received, shall be consistent with the
Department of Environmental QualityÂ’s water quality certification decision and
shall incorporate conditions attached to any certification by the Director of
the Department of Environmental Quality pursuant to 33 U.S.C. 1341(d). The
final unified state position also shall include recommendations under 16 U.S.C.
803(j), any other conditions recommended for inclusion in the federal license
for the project and any additional information requests to be addressed in the
federal proceeding. The team also shall prepare a proposed final order on
reauthorization of a water right for the project.
     (2) The team shall provide the final
unified state position to the applicant and to the Federal Energy Regulatory
Commission. The team shall submit the proposed final order on reauthorization
of the water right to the Water Resources Department. Upon receipt of the
proposed final order, the department shall complete processing of the
application for reauthorization of the water right in accordance with the
provisions of ORS 543A.120 to 543A.300.
     (3) The team may submit to the Federal
Energy Regulatory Commission and the applicant any proposed final unified state
position, comments, recommendations, conditions or additional information
requests, coordinated in accordance with this chapter, at any time necessary to
satisfy a deadline established by the Federal Energy Regulatory Commission for such
submission, even if the procedures set forth in this section for the
development of a final unified state position have not been completed. [1997
c.449 §22; 2001 c.369 §6]
PROCESS FOR
COMPLETING REAUTHORIZATION OF WATER RIGHT FOR EITHER STATE OR FEDERALLY
LICENSED PROJECT
     543A.120
Proposed final order. (1) A
proposed final order prepared by a Hydroelectric Application Review Team and
submitted to the Water Resources Department under ORS 543A.040, 543A.055 or
543A.105 shall be based on the application of the standards set forth in ORS
543A.025 and shall reflect the complete review of the water right application
for compliance with applicable statutes and rules.
     (2) The proposed final order shall cite
findings of fact and conclusions of law and shall include but need not be
limited to:
     (a) Confirmation or modification of the
preliminary determinations made in the initial review;
     (b) A brief statement that explains the
criteria considered relevant to the decision, including the applicable basin
program, the compatibility of the proposed use with applicable land use plans
and information set forth in the application report or final report on studies;
     (c) An assessment of water availability
and the amount of water necessary for the proposed use;
     (d) An assessment of whether the proposed
use would result in injury to existing water rights;
     (e) An assessment of whether the proposed
use would impair or be detrimental to the public interest as provided in ORS
543A.025;
     (f) A draft certificate, including any
proposed conditions, or a recommendation to deny the application; and
     (g) The date by which protests to the
proposed final order must be received by the department.
     (3) The department shall mail copies of
the proposed final order, as submitted by the team, to the applicant and to
persons who have requested copies and paid the fee required under ORS 536.050
(1)(p). The department also shall give public notice of the proposed final
order in the weekly notice published by the department.
     (4) Any person may request standing for
purposes of participating in any contested case proceeding on the proposed
final order or for judicial review of a final order. A request for standing
shall be in writing and shall be accompanied by the fee established under ORS 536.050
(1)(n).
     (5) Any person may submit a protest
against a proposed final order. A protest shall be in writing and shall
include:
     (a) The name, address and telephone number
of the protestant;
     (b) A description of the protestant’s
interest in the proposed final order and, if the protestant claims to represent
the public interest, a precise statement of the public interest represented;
     (c) A detailed description of how the
action proposed in the proposed final order would impair or be detrimental to
the protestantÂ’s interest;
     (d) A detailed description of how the
proposed final order is in error or deficient and how to correct the alleged
error or deficiency;
     (e) Any citation of legal authority
supporting the protest, if known; and
     (f) For persons other than the applicant,
the protest fee required under ORS 536.050 (1)(j).
     (6) Requests for standing and protests on
the proposed final order shall be submitted within 45 days after publication of
the notice of the proposed final order in the weekly notice published by the
department. Any person who asks to receive a copy of the departmentÂ’s final
order shall submit to the department the fee required under ORS 536.050 (1)(p),
unless the person has previously requested copies and paid the required fee.
     (7) The Hydroelectric Application Review
Team shall review any protest received and provide to the Water Resources
Director a recommended response to any protest received.
     (8) Within 120 days after the close of the
period for receiving protests and after consultation with the Hydroelectric
Application Review Team, the director shall:
     (a) Issue a final order as provided under
ORS 543A.130; or
     (b) Schedule a contested case hearing if a
protest has been submitted and if:
     (A) Upon review of the issues, the director
finds that there are significant disputes related to the proposed
reauthorization of the project; or
     (B) Within 30 days after the close of the
period for submitting protests, the applicant requests a contested case
hearing.
     (9) At the request of the applicant, the
department may extend the time periods set forth in subsection (8) of this
section for a reasonable period of time.