Chapter 369 Oregon Laws 2001
AN ACT
SB 319
Relating to hydroelectric
power; creating new provisions; amending ORS 543A.085, 543A.090, 543A.095,
543A.105, 543A.110, 543A.115 and 543A.405; repealing ORS 543.810, 543.820 and
543.830; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 543A.085 is amended to read:
543A.085. (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 [shall be
conducted] at the first stage of the Federal Energy Regulatory Commission
review of the federal license for the project.
(2) The applicant [shall
be] is responsible for
conducting the public scoping meeting[.]
and shall invite 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] 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 [a proposed study
plan] and submit [the proposed study
plan] study proposals to the
team. Upon receipt of the [proposed study
plan] proposals, the team and the applicant shall publish notice
of the availability of the [proposed
study plan] proposals and allow
30 days for the public to provide comments on the [proposed study plan]
proposals.
(6) Based on its review of the comments and recommendations
on the [proposed study plan] 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
[a final study plan] final study proposals and methodology
and submit the final study [plan] proposals and methodology to the team.
Upon receipt of the final study [plan] proposals and methodology, the team
shall make the applicant’s study [plan]
proposals and methodology available
to the public.
(7) The study [plan]
proposals shall allow at least two
years for completing the studies.
SECTION 2.
ORS 543A.090 is amended to read:
543A.090. (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 [study plan] studies.
(2) The applicant shall consider any comments received in
response to the mid-study status report and make any necessary changes [to the study plan] prior to completing
the second year of studies.
SECTION 3.
ORS 543A.095 is amended to read:
543A.095. (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.
SECTION 4.
ORS 543A.105 is amended to read:
543A.105. (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.
SECTION 5.
ORS 543A.110 is amended to read:
543A.110. (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 director’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.
SECTION 6.
ORS 543A.115 is amended to read:
543A.115. (1) Upon receipt of the Department of
Environmental Quality’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 Quality’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.
SECTION 7.
ORS 543A.405 is amended to read:
543A.405. (1) Subject to the provisions of ORS 543A.410,
any person submitting a notice of intent to seek reauthorization, a preliminary
application or an application for reauthorization of a project under ORS
543A.030, 543A.035, 543A.075, 543A.080 or 543A.095 shall pay all expenses
related to the review and decision of the Hydroelectric Application Review Team
that are incurred by the team and any agency participating as part of the team,
and that are not otherwise covered by the reauthorization fee paid under ORS
543A.415.
(2) Every person submitting a notice of intent to seek
reauthorization of a project shall submit the fee required under ORS 536.050
(1)(r) to the Water Resources Department when the notice of intent is submitted[, except that a person submitting a notice
of intent before January 1, 1998, shall not be required to pay the fee until
the fee schedule required under ORS 543A.410 is adopted].
(3) Before submitting an application to reauthorize a state
project under ORS 543A.035, the applicant shall request from the team an
estimate of the costs expected to be incurred in processing the application.
The team shall inform the applicant of that amount and require the applicant to
make periodic payments of such costs pursuant to a cost reimbursement
agreement. The cost reimbursement agreement shall provide for payment of 25
percent of the estimated costs when the applicant submits an application under
ORS 543A.035.
(4) Before the close of public comment on [an applicant-proposed study plan] study proposals developed by the applicant
for a federally licensed project under ORS 543A.085, the team shall estimate
the costs expected to be incurred in evaluating the project. The team shall
inform the applicant of that amount and require the applicant to make periodic
payments of such costs pursuant to a cost reimbursement agreement. The cost
reimbursement agreement shall provide for a first payment of 25 percent of the
estimated costs on a schedule established in the agreement.
(5) If costs of the team’s evaluation of a project exceed
the estimate in the cost reimbursement agreement, the applicant shall pay any
excess costs shown in an itemized statement prepared by the team. In no event
shall the team and its participating agencies incur evaluation expenses in
excess of 110 percent of the fee initially estimated unless the team provided
prior notification to the applicant and a detailed projected budget the team
believes is necessary to complete evaluation of the application. If costs are
less than the fee paid, the team shall refund the excess to the applicant.
(6) The Water Resources Department shall reimburse
participating agencies for costs incurred in their review of a project. Such
costs shall not include expenses of other state agencies for which a fee is
otherwise collected under state law.
SECTION 8.
Amendment or repeal of any section of
ORS chapter 543A does not affect any water right or the rights of any holder of
a water right issued thereunder.
SECTION 9.
ORS 543.810, 543.820 and 543.830 are
repealed.
SECTION 10.
This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2001 Act takes effect on its passage.
Approved by the Governor
June 14, 2001
Filed in the office of
Secretary of State June 15, 2001
Effective date June 14, 2001
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