2011 ORS § 543A.025¹
Minimum standards for decision on reauthorization of water right
- • rules
(1) Following the process set forth in ORS 543A.005 (Definitions) to 543A.410 (Fee schedule), 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 (Conditions for consideration of application for use not classified in basin program) to 536.350 (Delivery of water resources statement to certain public bodies) and 537.505 (Short title) to 537.534 (Rules for permitting and administering aquifer storage and recovery projects).
(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 (Policy) 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]