Steele v. Water Resources Commission

273 P.3d 243, 248 Or. App. 229, 2012 WL 604383, 2012 Ore. App. LEXIS 151
CourtCourt of Appeals of Oregon
DecidedFebruary 15, 2012
DocketHE559; A144766
StatusPublished
Cited by10 cases

This text of 273 P.3d 243 (Steele v. Water Resources Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steele v. Water Resources Commission, 273 P.3d 243, 248 Or. App. 229, 2012 WL 604383, 2012 Ore. App. LEXIS 151 (Or. Ct. App. 2012).

Opinion

NAKAMOTO, J.

• Petitioner John Steele seeks judicial review of a final order in which the Water Resources Department determined, in accordance with ORS 543.255, that a proposed hydroelectric project at the Dorena Dam on the Row River in Lane County does not have impacts that are cumulative with those of other existing or proposed hydroelectric projects in the same river basin. Based on that determination, the department in its order concluded that it was not necessary to hold a consolidated contested case hearing to review those cumulative impacts. Because petitioner has neither challenged the decision declining to hold a consolidated contested case review, nor established that any of the issues he raises on judicial review, even if well taken, would affect the validity of the order that he protests, we reject petitioner’s preserved assignment of error and therefore affirm the final order under review.

Because we decide the case based on the issues that were before the department in the order that we review, we state the facts with a focus on the procedural history of the case. The United States Army Corps of Engineers (the Corps) built the Dorena Dam in 1949 without providing for either fish passage or hydroelectric production. Respondent Symbiotics, LLC (Symbiotics), a hydroelectric developer, now seeks to build a hydroelectric facility at the dam. Symbiotics has received the necessary federal license, but it also needs approval from the department to appropriate water flow through the dam for the project. It therefore applied for a state license.

The primary criteria for the department’s consideration in acting on Symbiotics’s application for a license are set forth in ORS 543.017, ORS 543.225, and ORS 543.255. Under ORS 543.225(1), the Water Resources Commission must hold a public hearing on the license application to determine whether the proposed project would impair or be detrimental to the public interest. Criteria that the commission must consider in making that determination are located in ORS 543.225(3).1

[232]*232Further, the commission must follow the minimum standards in ORS 543.017(1)2 with regard to fish and other natural resources in any action relating to the development [233]*233of hydroelectric power in Oregon, and ORS 543.225(2) requires the commission to determine that a project complies with those standards before it issues a license. If the project does not comply, the commission must reject the application or else require modifications to conform to the public interest. ORS 543.225(2). Additionally, as explained in more detail below, ORS 543.255 requires the commission to consider the cumulative impacts of the project in conjunction with other existing and proposed hydroelectric projects.

On September 30, 2008, the department issued two proposed final orders on the Dorena Dam project. The first was a Proposed Final Order on Public Interest Issues (the Public Interest Order), which dealt with the issues that arose under ORS 543.017 and ORS 543.225. After extensively discussing the facts that it found to be relevant, the department proposed to determine that the project met the statutory criteria and that a license from the state that granted a water right for the project’s operation should issue. It proposed the following final order:

“Based on the findings and conclusions, the public interest standards of ORS 543.017 and 543.225 have been met with regards to the proposed [p]roject. A new hydroelectric license may be issued for the [plroject.
“As a condition of the water right, the applicant shall provide evidence that land use approval has been received from Lane County before construction or operation of the hydroelectric project is begun.”

The proposed order also described the procedure for a person to protest it and obtain a contested case hearing.

The second proposed final order, the Cumulative Impacts Order, dealt with the issues that arose under ORS 543.255(1). That provision comes into play whenever the department receives an application to appropriate water for a hydroelectric project. Id. It required the department to consider whether the Dorena Dam project would have impacts that were cumulative with

“(a) Impacts of other proposed hydroelectric projects for which an application is pending before the department; or
[234]*234“(b) Existing hydroelectric projects in the same river basin.”

Id. Under the statute, 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 department’s determination that there are no cumulative effects and the department’s decision that consolidated review is not required.” ORS 543.255(2). On the other hand, if the department determines that there “may” be cumulative effects, the commission “shall conduct a consolidated review before approving any application in the affected river basin.” ORS 543.255(3). “[T]he consolidated review process shall be conducted as a contested case hearing” under the Oregon Administrative Procedures Act (APA) 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.” Id.

In the Cumulative Impacts Order, the department described other hydroelectric projects in the Willamette River Basin. Because of those other projects, the department had to apply the presumption established in its governing rule, OAR 690-051-0290(1), the pertinent part of which provides:

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Cite This Page — Counsel Stack

Bluebook (online)
273 P.3d 243, 248 Or. App. 229, 2012 WL 604383, 2012 Ore. App. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steele-v-water-resources-commission-orctapp-2012.