71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1002
A-Engrossed
Senate Bill 319
Ordered by the Senate March 27
Including Senate Amendments dated March 27
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor John A. Kitzhaber,
M.D., for Water Resources Department)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Ensures ability of Water Resources Department to participate in
decommissioning of hydroelectric project for purposes of
protecting public health, public safety and environment.
{ - Requires hydroelectric task force to develop recommendations
and report to Seventy-second Legislative Assembly. - } Directs
Hydroelectric Application Review Team to prepare provisional
state position irrespective of deficiencies in draft application
for reauthorization of hydroelectric project. Allows team to meet
deadlines by submitting second proposed unified state position
and proposed final unified state position, { - public - }
comments, recommendations, conditions and information requests to
applicant and Federal Energy Regulatory Commission even if not
completed.
Declares emergency, effective on passage.
A BILL FOR AN ACT
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. + }
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