Chapter 543 — Hydroelectric
Projects
2011 EDITION
HYDROELECTRIC PROJECTS
WATER LAWS
GENERAL PROVISIONS
543.010 Definitions
for ORS 543.010 to 543.610
543.012 Applicability
of chapter to reauthorization of existing hydroelectric project
543.014 Exemption
for wave energy project; conditions
543.015 Policy
543.017 Minimum
standards for development of hydroelectric power; public interest
considerations; rules
(Temporary provisions relating to wave
energy projects subject to federal licensing are compiled as notes following
ORS 543.017)
543.050 Powers
of Water Resources Commission as to permits, licenses, investigations, reports,
forms and examination of records
543.055 Hearings
and witnesses
543.060 Investigations;
access to project, maps, books and other project data
HYDROELECTRIC PROJECT FEES
543.075 Definitions
for ORS 543.075 to 543.092
543.078 Annual
fee for hydroelectric project
543.080 Project
specific fees; summary of project specific expenditures
543.082 Invoice
for fees; overdue fee; interest on delinquent fees
543.085 Periodic
review of annual fee
543.088 Payment
of costs or fee for reauthorization or relicensing of project
543.090 Payment
of expenses of Hydroelectric Application Review Team for project operating
under federal license and state power claim or uncertificated claim
543.092 Amendment
of hydroelectric water right or claim; rules; unilateral amendment of power
claim or uncertificated claim to assess project specific fees
543.095 Challenges
to certain statutes related to hydroelectric projects
APPROPRIATION OF WATER FOR POWER;
APPLICATION OF LAW
543.110 Appropriation
and use of water for power is governed by this chapter
543.120 Water
power projects to be in conformity with this chapter
543.140 Projects
or developments constructed by federal government excepted from law
543.150 Municipal
corporations and utility districts; applicability of laws; powers of commission
respecting districts
543.160 Hydroelectric
facility on North Santiam River prohibited; exception
543.165 Hydroelectric
facility on part of Deschutes River prohibited
543.170 Hydroelectric
facility on Squaw Creek prohibited
543.175 Hydroelectric
facility on Deschutes River within City of Bend prohibited; exception
PRELIMINARY PERMITS; LICENSES
543.210 Preliminary
permits; application; contents; fee
543.220 Notice
of filing of application; waiting period
543.225 Hearing
on application; notice; policy
543.230 Hearings
on application; rules; protest
543.250 Permit;
duration; transfer; cancellation; priority; terms and conditions; denial
543.255 Determination
of cumulative impacts of proposed hydroelectric power projects; consolidated
review; applicability
543.260 Licenses;
duration; terms and conditions; termination; denial of application; preference
of municipality or utility district
543.265 Testing
of fish protection measures as condition for hydroelectric project permit or
license; scope and cost
543.270 Preference
in granting permit or license; municipal use
543.280 Fee
payments by licensee
543.290 Filing
of maps, plans, estimates and other materials; incorporation as part of
license; alteration; further statements and data
543.300 Conditions
governing license; fees; waiver of conditions
543.310 Disposition
of moneys collected
543.320 Effect
of amendment or repeal of law
TIME FOR CONSTRUCTION; TERMINATION,
REVOCATION OR TRANSFER OF LICENSE
543.410 Construction
of project; time for commencement and completion; supply of service; extension
of time; nonperformance; termination of license
543.420 Noncompletion
of construction within prescribed time; judicial proceedings; sale of property;
disposition of proceeds; rights of purchaser
543.430 Proceedings
after completion of project for violation of license terms; authority of court;
sale of project
543.440 Transfer
of license, rights or property; effect
FINANCING OF PROJECTS; LIENS; BOND OF
LICENSEE
543.525 ORS
543.530 to 543.550 not applicable to regulated utilities
543.530 Issuance
by licensee of stocks, bonds or other interest without authorization of Water
Resources Commission prohibited
543.540 Consideration
for bonds, stocks and other securities; restrictions; corporate shares; sale
price of securities; discount from face value
543.550 Liens
prohibited; exceptions; what may be included by mortgage, trust deed or sale;
determination of investment in case of sale of part
543.560 Bond
of licensee or letter of credit securing claims of suppliers; enforcement of
obligation; action for sums due State Accident Insurance Fund Corporation
ACQUISITION OF PROJECT BY STATE OR
MUNICIPALITY
543.610 Acquisition
of project by state or municipality
POWER GENERATION BY DISTRICTS
543.650 Policy
543.655 Definitions
for ORS 543.650 to 543.685
543.660 Authority
of district to enlarge or modify water system and power generating facilities;
joint district ventures; prohibitions; sale of energy; regulations
543.662 Authority
of district to develop joint project with private person; restrictions
543.664 Rules
relating to joint projects of districts and private persons
543.665 Authority
to issue revenue bonds to acquire hydroelectric facilities
543.670 Manner
of issuance of revenue bonds
543.675 Power
of eminent domain not to be exercised to acquire hydroelectric facilities
543.680 Compliance
with water appropriation laws required
543.685 District
board to require weatherization; Weatherization Fund; purpose
POWER DEVELOPMENT FEES
543.705 Definitions
for ORS 543.710 to 543.730
543.710 Annual
fee based on horsepower; exemptions; disbursement
543.720 Payment
of annual fee; accompanying statement; penalty for nonpayment of fees or
nonfiling; lien; foreclosure; effect of filing excessive claim; computation of
horsepower
543.730 Failure
to file statement or pay fees as evidence of abandonment of claim; cancellation
of claim, permit and water right certificate
USE OF EXISTING WATER RIGHT FOR
HYDROELECTRIC PURPOSES
543.760 Definition
of water right
543.765 Certificate
to use water for hydroelectric purposes; expedited application process; fees
PENALTIES
543.990 Penalties
GENERAL PROVISIONS
543.010 Definitions for ORS 543.010 to
543.610. As used in ORS 543.010 to 543.610:
(1)
“Actual original cost” includes the sum paid to the state at the time the
application was made for a preliminary permit; the sum paid or secured to be
paid to the state by the applicant for license at the time such application was
made; such sums as may be paid to the United States or any department thereof;
and such sums as shall have been reasonably and prudently expended in preliminary
investigations, explorations and organization expenses, as determined by the
Water Resources Commission.
(2)
“Project” means a complete unit, improvement or development. It includes, among
other things, power houses, water wheels, conduits or pipes, dams and
appurtenant works and structures, storage, diverting or forebay reservoirs
connected therewith, and primary lines transmitting power to the point of
junction with a distributing system, or with any interconnected primary system,
miscellaneous works and structures used in connection with the unit or any part
thereof, rights of way, lands, flowage rights and all other properties, rights
and structures necessary or appropriate in the use, operation and maintenance
of any such unit. [Amended by 1985 c.673 §139; 1995 c.229 §1]
543.012 Applicability of chapter to
reauthorization of existing hydroelectric project.
(1) Except for the provisions of ORS 543.300, 543.310, 543.430, 543.440,
543.610, 543.650 to 543.685, 543.710, 543.720, 543.730 and 543.990, nothing in
this chapter shall apply to the reauthorization of an existing project.
(2)
All references in ORS 543.300, 543.310, 543.430, 543.440, 543.610, 543.650 to
543.685, 543.710, 543.720, 543.730 and 543.990 to a license or a license issued
under ORS 543.010 to 543.610 also shall be considered a reference to a water
right issued under ORS 468.065, 468B.040, 468B.045, 468B.046, 536.015, 536.050,
543.012 and 543.710 and ORS chapter 543A. [1997 c.449 §42]
543.014 Exemption for wave energy project;
conditions. A wave energy project is exempt from
regulation under this chapter, except as provided in ORS 543.050 (3), 543.055
and 543.060 if:
(1)
The project generates electricity from wave energy;
(2)
The project is located within Oregon’s territorial sea, as defined in ORS
196.405;
(3)
The nominal electric generating capacity, as defined in ORS 469.300, of the
project does not exceed five megawatts; and
(4)
A license under the Federal Power Act, 16 U.S.C. 791a et seq., is not required
to either construct or operate the project. [2007 c.212 §2; 2009 c.405 §§1,2]
Note:
543.014 was added to and made a part of ORS chapter 543 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
543.015 Policy.
The Legislative Assembly declares that it is the policy of the State of Oregon:
(1)
To protect the natural resources of this state from possible adverse impacts
caused by the use of the waters of this state for the development of hydroelectric
power.
(2)
To permit siting of hydroelectric projects subject to strict standards
established to protect the natural resources of Oregon.
(3)
To require the Water Resources Commission, the Energy Facility Siting Council,
the Department of Environmental Quality and other affected state agencies to
participate to the fullest extent in any local, state or federal proceedings
related to hydroelectric power development in order to protect the natural
resources of Oregon. [1985 c.569 §2]
543.017 Minimum standards for development
of hydroelectric power; public interest considerations; rules.
(1) In order to carry out the policy set forth in ORS 543.015, the following
minimum standards shall apply to any action of the Water Resources Commission
relating to the development of hydroelectric power in Oregon:
(a)
The anadromous salmon and steelhead resources of Oregon shall be preserved. The
commission shall not approve activity that may result in mortality or injury to
anadromous salmon and steelhead resources or loss of natural habitat of any
anadromous salmon and steelhead resources except when an applicant proposes to
modify an existing facility or project in such a manner that can be shown to
restore, enhance or improve anadromous fish populations within that river
system.
(b)
Any activity related to hydroelectric development shall be consistent with the
provisions of the Columbia River Basin Fish and Wildlife Program providing for
the protection, mitigation and enhancement of the fish and wildlife resources
of the region as adopted by the Pacific Northwest Electric Power and
Conservation Planning Council pursuant to Public Law 96-501.
(c)
Except as provided in this paragraph, no activity may be approved that results
in a net loss of wild game fish or recreational opportunities. If a proposed
activity may result in a net loss of any of the above resources, the commission
may allow mitigation if the commission finds the proposed mitigation in the
project vicinity is acceptable. Proposed mitigation that may result in a wild
game fish population, or the fishery the wild game fish population provides,
being converted to a hatchery dependent resource is not acceptable mitigation.
A water dependent recreational opportunity must be mitigated by another water
dependent recreational opportunity. Mitigation of water dependent recreational
opportunities that, in the judgment of the commission, are of statewide
significance with a recreational opportunity that is readily available on other
waters of this state is not acceptable mitigation. In deciding whether
mitigation is acceptable, the commission shall consult with other local, state
and federal agencies.
(d)
Other natural resources in the project vicinity, including water quality,
wildlife, scenic and aesthetic values, and historic, cultural and
archaeological sites, shall be maintained or enhanced. No activity may be
approved that, in the judgment of the commission after balancing gains and
losses to all affected natural resources, may result in a net loss of natural
resources. In determining whether the proposed activity may result in a net
loss of natural resources, the commission may consider mitigation if the
commission determines the proposed mitigation in the project vicinity is
acceptable. Mitigation may include appropriate measures considered necessary to
meet the net loss standard. In determining whether mitigation is acceptable,
the commission shall consult with appropriate state, federal and local
agencies.
(e)
In determining whether it is in the public interest to allocate water for a
proposed hydroelectric development, the commission shall consider present and
future power needs and shall make a finding on the need for the power. For a
hydroelectric project with a nominal electric generating capacity of 25
megawatts or more, the Water Resources Commission shall consider any
recommendation by the Energy Facility Siting Council. The Energy Facility
Siting Council’s recommendation shall be based solely on information contained
in the hearing record of the Water Resources Commission. The commission’s order
on the proposed hydroelectric development shall describe the Energy Facility
Siting Council’s recommendations on the need for the power. If the commission’s
decision on the need for power is contrary to the Energy Facility Siting
Council’s recommendation, the commission’s order shall explain the commission’s
failure to follow the recommendation of the Energy Facility Siting Council. The
commission also shall consult with the Energy Facility Siting Council on other
matters within the expertise of the Energy Facility Siting Council.
(2)
The commission shall adopt all necessary rules to carry out the policy set
forth in ORS 543.015 and to implement the minimum standards set forth in
subsection (1) of this section. In the absence of implementing rules, any
action of the commission relating to hydroelectric development shall comply
with the standards as set forth in this section.
(3)
Nothing in this section limits the authority of any state agency to make recommendations
regarding appropriate license conditions during the consideration of the
issuance of a license or permit for an existing hydroelectric project. [1985
c.569 §3; 1993 c.544 §6; 1995 c.229 §2; 2007 c.71 §176]
(Temporary provisions relating to wave
energy projects subject to federal licensing)
Note:
Sections 1 to 4, chapter 152, Oregon Laws 2011, provide:
Sec. 1.
Section 2 of this 2011 Act is added to and made a part of ORS chapter 543.
[2011 c.152 §1]
Sec. 2. (1) A
wave energy project that does not qualify under ORS 543.014 is exempt from the
minimum standards specified in ORS 543.017 if:
(a)
The project generates electricity from wave energy;
(b)
The project is located within Oregon’s territorial sea, as defined in ORS
196.405;
(c)
The nominal electric generating capacity, as defined in ORS 469.300, of the
project does not exceed five megawatts;
(d)
A license under the Federal Power Act, 16 U.S.C. 791a et seq., is required to
either construct or operate the project and the license provides for adaptive
management to prevent or mitigate unexpected adverse impacts on the
environment, fish and wildlife resources, commercial fishing and recreation;
and
(e)
The project is constructed and operated subject to an agreement with the Water
Resources Department, State Department of Fish and Wildlife, Department of
State Lands, Department of Land Conservation and Development, Department of
Environmental Quality, State Department of Energy and State Parks and
Recreation Department.
(2)
The agreement specified in subsection (1)(e) of this section:
(a)
Must provide for the collection and analysis of information necessary or
desirable to determine, and measures to prevent or mitigate, the impact of the
project on the environment, fish and wildlife resources, commercial fishing and
recreation; and
(b)
May be developed with the assistance of an advisory group consisting of
representatives of each local government and federally recognized Indian tribe
that is affected by the wave energy project.
(3)
The Water Resources Commission may adopt rules regarding projects described in
this section to implement the policies of ORS 543.015, specify provisions for
adaptive management and provide for the distribution of the information
specified in subsection (2) of this section. [2011 c.152 §2]
Sec. 3.
Section 2 of this 2011 Act applies only to wave energy projects for which an
application is made to the Department of State Lands on or before December 31,
2021. [2011 c.152 §3]
Sec. 4.
Section 2 of this 2011 Act is repealed January 2, 2022. [2011 c.152 §4]
543.020
[Repealed by 1961 c.224 §20]
543.030
[Repealed by 1961 c.224 §20]
543.040
[Repealed by 1961 c.224 §20]
543.050 Powers of Water Resources
Commission as to permits, licenses, investigations, reports, forms and
examination of records. The Water Resources Commission
may:
(1)
Issue preliminary permits, as provided in ORS 543.210 to 543.250, to any person
qualified to become a licensee.
(2)
Issue licenses, as provided in ORS 543.260, to citizens of the United States,
associations of citizens, or private corporations organized under the laws of
the United States or any state of the United States, to appropriate, initiate,
perfect, acquire and hold the right to the use of waters within the state,
including waters over which the state has concurrent jurisdiction, and to
construct, operate and maintain dams, reservoirs, power houses, conduits,
transmission lines, and all other works and structures necessary or convenient
for the use of the waters in the generation and utilization of electricity.
(3)
Conduct investigations and collect information the commission considers
necessary or useful for the purposes of ORS 543.010 to 543.610 and cooperate
with the federal government and adjoining states concerning all such matters,
particularly with reference to waters forming the boundary between this state
and another state.
(4)
Prescribe the forms of all accounts, records and memoranda to be kept by
licensees under ORS 543.010 to 543.610.
(5)
Examine at any time all accounts, books of account and documents and data
related to the business of a licensee under ORS 543.010 to 543.610; and require
a licensee to submit, whenever required by the commission, reports and
statements under oath containing information as to assets, liabilities,
capitalization, gross receipts, interest and dividend requirements, interest
due and paid, amortization and other reserves, net investment, cost of any
project constructed, maintained or operated, in whole or in part, cost of
maintenance, operation, renewals, replacements, cost of production,
transmission, distribution and sale of electricity, and other data as the
commission may require.
(6)
Perform all acts, exercise all powers and issue all orders which, in the
judgment and discretion of the commission, are necessary to effectuate the
purposes of ORS 543.010 to 543.610. [Amended by 1955 c.673 §3; 1955 c.707 §39;
1961 c.224 §13; 1985 c.673 §140; 1995 c.229 §3]
543.055 Hearings and witnesses.
(1) The Water Resources Commission may hold hearings and take testimony orally,
by deposition or in such other form as the commission considers satisfactory,
either within or without this state. The Water Resources Commission may
require, by subpoena, the attendance of witnesses and the production of documentary
evidence.
(2)
An administrative law judge assigned from the Office of Administrative Hearings
established under ORS 183.605, shall conduct any contested case hearing that
the commission is required or permitted by law to hold. The administrative law
judge has the same powers with respect to the conduct of the hearing as are
granted by law to the commission, including the taking of testimony, the
signing and issuance of subpoenas and the administering of oaths and
affirmations to witnesses. The administrative law judge shall keep a record of
the proceedings on the hearing and shall transmit such record to the
commission.
(3)
The commission may designate any person to take the testimony, affidavit or
deposition of a witness. The person so designated may administer an oath or
affirmation to any such witness and take the testimony thereof in accordance
with such rules as the commission may prescribe.
(4)
Witnesses appearing before the commission or any person designated by the
commission to take testimony shall be paid the fees and mileage provided for
witnesses in ORS 44.415 (2). [1955 c.673 §2; 1961 c.224 §14; 1985 c.673 §141;
1989 c.980 §15; 1999 c.849 §§112,113; 2003 c.75 §46]
543.060 Investigations; access to project,
maps, books and other project data. The Water
Resources Commission, the Water Resources Director or any employee of the Water
Resources Department, at all reasonable times, shall have free access to any
project, addition or betterment during or after construction or acquisition, and
to all maps, plans, profiles, estimates, engineers’ reports, books, accounts,
records and other data relating to the project. [1985 c.673 §142]
543.070
[Repealed by 1975 c.581 §29]
HYDROELECTRIC PROJECT FEES
543.075 Definitions for ORS 543.075 to 543.092.
As used in ORS 543.075 to 543.092:
(1)
“1998 dollar” means a dollar amount that when adjusted for inflation or
deflation equals the value of a dollar in 1998.
(2)
“Holder” means a person authorized to operate a hydroelectric project under the
authority of either a time-limited water right, a certificated water right or a
pre-1909 uncertificated claim. “Holder” includes licensees, power claimants,
uncertificated claimants and water right certificants.
(3)
“Licensee” means a person authorized to operate a hydroelectric project through
the means of a license containing a time-limited water right.
(4)
“Power claimant” means a person authorized to operate a hydroelectric project
through the means of a water right that does not expire.
(5)
“Reauthorize” means the process by which a hydroelectric project holding a
time-limited hydroelectric license acquires new authorization to continue
operating for an additional fixed amount of time according to ORS chapter 543A.
(6)
“Relicense” means the process by which the Federal Energy Regulatory Commission
issues a new license to allow a hydroelectric project to continue operating
past the expiration date of its current license.
(7)
“Team” means a Hydroelectric Application Review Team created pursuant to ORS 543A.035,
543A.075 or 543A.300.
(8)
“Uncertificated claimant” means a person authorized to operate a hydroelectric
project through the means of an uncertificated claim established prior to 1909.
(9)
“Water right certificant” means a person authorized to operate a hydroelectric
project through the means of a time-limited certificated water right. [1999
c.873 §4]
543.078 Annual fee for hydroelectric
project. (1) On or before January 1 of each
year, each holder shall pay to the State of Oregon an annual fee for each
hydroelectric project that is subject to this section. The annual fee required
by this section shall be based on the theoretical horsepower specified in the
water right for each project.
(2)
The amount of the annual fee required under subsection (1) of this section
shall be determined in the following manner:
(a)
Subject to the schedule set forth in subsection (3) of this section, each
holder shall pay an amount, in 1998 dollars, equal to $0.405 per theoretical
horsepower covered by the water right for the holder’s hydroelectric project.
The annual fee may be set forth in the water right or may be established by
order of the Water Resources Director and shall be adjusted annually for
inflation according to rules established by the Water Resources Commission. The
annual fee also may be adjusted through the periodic review process established
in ORS 543.085.
(b)
Each holder of a hydroelectric project that produces 123.5 theoretical
horsepower or less shall pay an annual fee of $50 for that project.
(3)
The fee determined in subsection (2) of this section shall apply to a project
on the January 1 following the occurrence of an event enumerated as follows:
(a)
A licensee or water right certificant shall begin to pay the annual fee after
the final order for the reauthorized water right is issued under ORS 543A.130.
(b)
Notwithstanding paragraph (a) of this subsection, if a licensee holds, on
October 23, 1999, an original state hydroelectric license for which the
original expiration date was or is more than five years after the expiration
date of the original Federal Energy Regulatory Commission license for the
project, the licensee shall begin payment of the annual fee established under
this section after the expiration date of the original state hydroelectric
license.
(c)
A power claimant, or uncertificated claimant, licensed by the Federal Energy
Regulatory Commission shall begin to pay the annual fee after the Federal
Energy Regulatory Commission issues a new license. A power claimant or
uncertificated claimant that received a new license from the Federal Energy
Regulatory Commission within 10 years prior to October 23, 1999, shall begin to
pay the annual fee on January 1, 2000.
(d)
A power claimant, or uncertificated claimant, whose project is exempted from
licensure by the Federal Energy Regulatory Commission or not licensed by the
Federal Energy Regulatory Commission shall begin paying the annual fee under
this section on January 1, 2008, for that project.
(4)
No fee shall be assessed under ORS 543.710 for a project subject to an annual
fee under this section. [1999 c.873 §5]
543.080 Project specific fees; summary of
project specific expenditures. (1) In
addition to the annual fee set forth in ORS 543.078, a holder may be required
to pay project specific fees.
(2)
Project specific fees are fees that compensate a state agency for the agency’s
reasonable and necessary oversight of a holder’s implementation of the
protection, mitigation and enhancement measures included in a water right for
the project, a certificate issued pursuant to ORS 468B.040 or 468B.045 or a
Federal Energy Regulatory Commission license.
(3)
Project specific fees shall be considered at the time of reauthorization or
relicensing of a hydroelectric project and, if needed, shall be established
before the proposed final order is issued under ORS 543A.115, and shall be
included in the reauthorized water right or the certificate issued pursuant to
ORS 468B.040 or 468B.045. In the case of power claims and uncertificated
claims, project specific fees shall be considered at the time of relicensing
and, if needed, shall be included in an order of the Water Resources Director
amending the claim pursuant to ORS 543.092 or in a certificate issued for the
project pursuant to ORS 468B.040 or 468B.045.
(4)
The need for, and amount of, a project specific fee shall be based upon the
following factors:
(a)
Experimental or unproven nature of the proposed mitigation;
(b)
Significance of the resource affected;
(c)
Need for ongoing agency involvement in reviewing the effectiveness of the
proposed measure;
(d)
Need for agency personnel to perform field work or research efforts; and
(e)
Overall nature of the protection, mitigation or enhancement measures, including
but not limited to consideration of whether the measure is simple, complex,
closed-ended or adaptive and whether the measure is determined solely by the
holder or by an agency or public committee.
(5)
A project specific fee may not be assessed for:
(a)
Work on projects other than the project for which the fee is established;
(b)
Work that is paid for by the annual hydroelectric fee;
(c)
Development of statewide hydroelectric policy;
(d)
Coordination of statewide activities within an agency;
(e)
Costs to the agency of Attorney General assistance associated with ongoing
litigation; or
(f)
Routine monitoring of compliance with nonadaptive management provisions of the
water right, an uncertificated claim, a certificate issued pursuant to ORS
468B.040 or 468B.045 or a Federal Energy Regulatory Commission license.
(6)
A project specific fee shall be time-limited. One year before expiration of a
project specific fee, the holder and any affected agency shall review the need,
if any, to modify, extend or terminate the project specific fee. After such
review, the agency shall propose a fee modification, extension or termination.
Any dispute regarding the proposed fee action shall be referred to an
independent fact finder selected by mutual agreement, whose costs shall be
borne one-half by the holder and one-half by the agency. The fact finder shall
review whether the proposed fee action is appropriate under and consistent with
the criteria set forth in subsections (2), (4) and (5) of this section. The
fact finder shall not review the substance of the protection, mitigation and
enhancement measures contained in the water right, the uncertificated claim,
the certificate issued pursuant to ORS 468B.040 or 468B.045 or the Federal
Energy Regulatory Commission license. The fact finder shall forward its
determination in writing to the holder and agency. Upon receipt and
consideration of the fact finder’s determination, the agency shall notify the
holder whether the project specific fee is modified, extended or terminated. If
the holder is dissatisfied with the fee action, the holder may request
administrative or judicial review in accordance with statutes or rules
applicable to a particular agency’s fee action. The written determination of
the fact finder shall be admissible in any such administrative or judicial
hearing. Notwithstanding any other law, a presumption shall exist in favor of
the determination of the fact finder and the burden shall be on the party
seeking a fee action contrary to the determination of the fact finder to
demonstrate that a different fee action is justified under this section.
(7)
Subject to subsections (2) to (5) of this section, the amount of a project
specific fee shall be established based on an estimate of the cost to the
agency of the labor, supplies and overhead expended by the agency in providing
reasonable and necessary oversight of a holder’s implementation of the
protection, mitigation and enhancement measures included in the water right,
the uncertificated claim, the certificate issued pursuant to ORS 468B.040 or
468B.045 or the Federal Energy Regulatory Commission license. The estimate used
to derive a project specific fee amount shall be determined by using increments
of not more than 0.25 full-time equivalents.
(8)
A project specific fee shall be payable after issuance of the final order
pursuant to ORS 543A.130, or in the case of power claimants and uncertificated
claimants, after the issuance of either the director’s order or a certificate
issued for the project pursuant to ORS 468B.040 or 468B.045. A project specific
fee shall be paid in increments that are reasonably related to the work to be
performed and set forth in the final order, certificate issued pursuant to ORS
468B.040 or 468B.045 or the director’s order.
(9)
Each agency receiving project specific fees shall, on a biennial basis, provide
the holder paying the fees with a summary of project specific expenditures. [1999
c.873 §6]
543.082 Invoice for fees; overdue fee;
interest on delinquent fees. (1) At least
45 days before the fees required under ORS 543.078 or 543.080 become due, the
Water Resources Department shall issue invoices to the holder for each fee.
(2)
If any holder fails to pay the fees required under ORS 543.078 or 543.080
within 15 days after the date specified in the invoice, the department shall
notify the holder of the amount and nature of the overdue fee. Any such notice
shall be sent to the holder by certified mail and shall include notification
that the holder has 30 days from the date of the certified delivery of the
notice to pay the overdue fee or the holder shall be subject to the late
payment penalty provisions of subsection (3) of this section.
(3)
Any fee that is not paid within 30 days of the date a holder receives certified
delivery of the notice required under subsection (2) of this section shall be
considered delinquent and shall be increased by 25 percent. In addition, the
state shall have a preference lien for any such fee, together with interest at
the rate of 10 percent per annum from the date of delinquency, upon the property
of the holder used, or necessary for use, in the development of the water
right, together with any improvements erected on the property for such
development. Upon notice from the Water Resources Commission, the Attorney
General shall foreclose the lien and collect the amount due, as provided in
this section, in the same manner as other liens on real property are
foreclosed.
(4)
The remedy set forth in subsection (3) of this section is in addition to any
other remedy provided by law for the collection of moneys or for noncompliance
with a condition of a water right order, uncertificated claim or certification
under ORS 468B.040 or 468B.045. [1999 c.873 §7]
543.085 Periodic review of annual fee.
(1) The Water Resources Director shall appoint a review panel to review the
amount of the annual fee established under ORS 543.078 in 2003 and 2009 and
every eight years thereafter. The review panel shall consist of at least one
representative from the following and others at the director’s discretion:
(a)
The Department of Environmental Quality;
(b)
The State Department of Fish and Wildlife;
(c)
The Public Utility Commission;
(d)
The Water Resources Department;
(e)
Investor owned utilities;
(f)
Publicly owned utilities;
(g)
Municipalities;
(h)
Environmental organizations;
(i)
Agricultural organizations; and
(j)
Nonutility owners of hydroelectric projects.
(2)
All holders paying annual fees under ORS 543.078 shall be notified by the Water
Resources Department at least 60 days in advance of the meeting of the review
panel established in subsection (1) of this section, and provided the
opportunity to submit comments to the panel.
(3)
Any periodic review conducted under subsection (1) of this section shall
evaluate each agency’s hydroelectric program to determine if current staffing
levels, activities and funding are appropriate to fulfill program objectives.
There shall be a presumption that the fee should not change. To overcome the
presumption and alter the existing fee, the panel must find compelling reasons
for alteration and must reach unanimous consent on the new fee. If the
presumption is overcome, upon completion of the review process the director
shall either adjust the annual fee as recommended by the panel or elect not to
adjust the fee. Any change in the annual fee as a result of this section shall
become effective on the January 1 following the director’s action. The director
shall notify all holders of any change in the annual fee and the effective date
of such change. [1999 c.873 §8]
543.088 Payment of costs or fee for
reauthorization or relicensing of project. (1)
Notwithstanding ORS 543A.405 and 543A.410, during each year of the interim
period established in subsection (2) of this section, any licensee or water
right certificant seeking reauthorization of a state water right to operate a
federally licensed hydroelectric project shall pay the greater of:
(a)
The actual cost of the Hydroelectric Application Review Team’s reauthorization
activities for the year in question as established pursuant to ORS 543A.405 and
543A.410; or
(b)
12.5 cents per theoretical horsepower as specified in the water right for each
project under consideration for reauthorization. This amount shall be
calculated in 1998 dollars.
(2)
For any project, the interim period referred to in subsection (1) of this
section shall begin on the January 1 immediately following submission to the
Water Resources Department of a proposed final order for reauthorization of the
project under ORS 543A.115 (2). For any project, the interim period referred to
in subsection (1) of this section shall end on December 31 of the year the
department issues a final order on reauthorization of the project pursuant to
ORS 543A.130.
(3)
Notwithstanding ORS 543.090, during each year of the interim period established
in subsection (4) of this section, any power claimant or uncertificated
claimant seeking to relicense a federally licensed hydroelectric project shall
pay the greater of:
(a)
The actual cost of the team’s relicensing activities for the year in question
as established pursuant to ORS 543.090; or
(b)
12.5 cents per theoretical horsepower as specified in the water right for each
project under consideration for relicensing. This amount shall be calculated in
1998 dollars.
(4)
For any project, the interim period referred to in subsection (3) of this
section shall begin on the January 1 immediately following issuance of an
annual license for the project by the Federal Energy Regulatory Commission. For
any project, the interim period referred to in subsection (3) of this section
shall end on December 31 of the year the Federal Energy Regulatory Commission
issues a new license for the project.
(5)
The Water Resources Department shall reimburse a participating agency for costs
incurred in the agency’s review of a project during the year for which the fees
are collected. Such costs shall not include expenses of other state agencies
for which a fee is otherwise collected under state law. Any fees collected
under subsection (1) or (3) of this section in excess of the team’s actual cost
of evaluation of the project for the year shall be distributed according to ORS
536.015.
(6)
No fee shall be charged under this section unless the project is a federally
licensed project.
(7)
No fee shall be charged pursuant to subsection (1) of this section unless the
Hydroelectric Application Review Team proposes to reauthorize the water right
for the project in the proposed final order submitted to the Water Resources
Department under ORS 543A.115 (2).
(8)
Water right certificants and licensees with water rights or licenses that
expire more than five years after the original federal license for the project
expires shall not begin paying fees assessed under this section until after the
expiration date of the original state hydroelectric license or water right. [1999
c.873 §9]
543.090 Payment of expenses of
Hydroelectric Application Review Team for project operating under federal
license and state power claim or uncertificated claim.
(1) Any project operating under a hydroelectric license issued by the Federal
Energy Regulatory Commission and concurrently operating under the authority of
a power claim or uncertificated claim shall pay all expenses related to the
review and decision of a Hydroelectric Application Review Team established
under ORS 543A.075 that:
(a)
Are incurred by the team and any agency participating as part of the team in
the federal relicensing process; and
(b)
Are not otherwise covered by the reauthorization fee paid under ORS 543A.415.
(2)
Not later than six years before the expiration of a hydroelectric license
issued by the Federal Energy Regulatory Commission to any project operating
concurrently under the authority of a power claim or uncertificated claim, the
Water Resources Department shall contact the holder to schedule a consultation
meeting regarding expected fees to be incurred by the Hydroelectric Application
Review Team.
(3)
Relicensing fees shall be calculated and assessed according to the terms and
conditions set forth in ORS 543A.405 and 543A.410 for application fees. [1999
c.873 §10]
543.092 Amendment of hydroelectric water
right or claim; rules; unilateral amendment of power claim or uncertificated
claim to assess project specific fees. (1) Upon the
request of the holder and the approval of the Water Resources Department, a
hydroelectric water right or claim may be amended.
(2)
The Water Resources Department shall develop rules governing the process by
which a hydroelectric water right or claim may be amended. Any amendments under
subsection (1) of this section shall:
(a)
Be consistent with the final unified state position for the project;
(b)
Be consistent with the requirements of ORS chapter 543A;
(c)
Cause no injury to other water rights; and
(d)
Allow for public participation in the amendment process.
(3)
The Water Resources Director may unilaterally amend a power claim or
uncertificated claim in order to assess project specific fees under ORS
543.080. [1999 c.873 §11]
543.095 Challenges to certain statutes
related to hydroelectric projects. (1) As used
in this section, “person” has the meaning given that term in ORS 174.100.
(2)
No person shall be estopped or precluded from challenging the constitutionality
or validity of any provision of chapter 449, Oregon Laws 1997, or the
provisions of chapter 873, Oregon Laws 1999, as a result of having received or
sought benefits under, complied with, paid fees under or filed an application
under those statutes, or as a result of having participated in their drafting,
enactment or implementation.
(3)
Nothing in this section shall be construed to imply that a person is estopped
or precluded from challenging the validity or constitutionality of any statute
as a result of having participated in the drafting, enactment or implementation
of the legislation that resulted in the enactment of such statute. [1999 c.873 §29]
Note:
Legislative Counsel has substituted “chapter 873, Oregon Laws 1999,” for the
words “this 1999 Act” in section 29, chapter 873, Oregon Laws 1999, compiled as
543.095. Specific ORS references have not been substituted, pursuant to
173.160. The sections for which substitution otherwise would be made may be
determined by referring to the 1999 Comparative Section Table located in Volume
20 of ORS.
Note:
543.095 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 543 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
APPROPRIATION OF WATER FOR POWER;
APPLICATION OF LAW
543.110 Appropriation and use of water for
power is governed by this chapter. After
February 26, 1931, no right to appropriate or to use the waters of the lakes,
rivers, streams or other bodies of water within this state, including water
over which this state has concurrent jurisdiction, in connection with the
development of any water power project for the generation of electricity, shall
be initiated, perfected, acquired or held, except for and during the periods or
extensions thereof stated in ORS 543.010 to 543.610, and pursuant to the
provisions thereof.
543.120 Water power projects to be in conformity
with this chapter. After February 26, 1931, no
water power project involving the use of the waters of lakes, rivers, streams
or other bodies of water within this state, including waters over which this
state has concurrent jurisdiction, for the generation of electricity, shall be
begun or constructed except in conformity with the provisions of ORS 543.010 to
543.610.
543.130
[Repealed by 1961 c.224 §20]
543.135 [1961
c.100 §§2,3; repealed by 1985 c.673 §185]
543.140 Projects or developments
constructed by federal government excepted from law.
The provisions of ORS 543.010 to 543.610 shall not apply to any water power
project or development constructed by the United States.
543.150 Municipal corporations and utility
districts; applicability of laws; powers of commission respecting districts.
The provisions of ORS 543.010, 543.050, 543.210, 543.220, 543.250, 543.260 and
543.290 to 543.610 shall not apply to cities, towns or other municipal
corporations of this state, including utility districts organized under section
12, Article XI, Oregon Constitution, and legislation enacted thereunder;
saving, however, to such cities, towns and other municipal corporations the
rights and preferences specified in ORS 543.260, 543.270 and 543.610. The Water
Resources Commission shall exercise the powers in relation to utility districts
as may be conferred upon the commission by any legislation providing for the
creation of such utility districts. [Amended by 1985 c.673 §144; 1991 c.869 §7]
543.160 Hydroelectric facility on North
Santiam River prohibited; exception. (1) No person
shall construct or maintain, and no officer or agency of the state shall issue
any permit for the construction or maintenance of any hydroelectric facility or
structure on the North Santiam River between river mile 27 and Big Cliff Dam.
(2)
Nothing in subsection (1) of this section applies to any hydroelectric facility
or structure constructed on the North Santiam River prior to October 15, 1983,
to the historic uses of such a hydroelectric facility or structure or to the
repair or reconstruction of such a hydroelectric facility or structure at the
present site. [1983 c.418 §§1,2]
Note:
543.160 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 543 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
543.165 Hydroelectric facility on part of
Deschutes River prohibited. No person, state agency, local
government, district or municipal corporation shall construct, and no officer
or agency of the state shall issue any permit for the construction of any
hydroelectric facility or structure on the Deschutes River between river mile
172 below Lava Island Falls and river mile 227 below but not including Wickiup
Dam. [1985 c.560 §1]
Note:
543.165 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 543 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
543.170 Hydroelectric facility on Squaw
Creek prohibited. No person, state agency, local
government, district or municipal corporation shall construct or maintain, and
no officer or agency of the state shall issue any permit for the construction
or maintenance of any hydroelectric facility or structure on Squaw Creek. [1985
c.560 §2]
Note:
543.170 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 543 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
543.175 Hydroelectric facility on
Deschutes River within City of Bend prohibited; exception.
(1) Except as provided in subsection (2) of this section, no person, state
agency, local government, district or municipal corporation shall construct or
maintain, and no officer or agency of the state shall issue any permit for the
construction or maintenance of any hydroelectric facility or structure on that
portion of the Upper Deschutes River situated within the city limits of the
City of Bend except for a facility that meets all of the following criteria:
(a)
The facility is located on an existing irrigation diversion facility or
structure constructed by persons.
(b)
The operation of the facility would not require any water in addition to water
appropriated for irrigation purposes.
(c)
Operation of the facility would be limited to the period of time during which
water is diverted for irrigation purposes and the diversion would not be
extended for the purpose of hydroelectric power generation.
(2)
Subsection (1) of this section shall not apply to the construction and
maintenance of or the issuance of a permit for a hydroelectric facility or
structure for which the hearing record is closed on or before the July 12,
1985, whether or not the record is later reopened by or at the direction of the
Water Resources Commission for any reason.
(3)
As used in this section, “Upper Deschutes River” means that portion of the
mainstem Deschutes River between the North Canal Dam at approximately river
mile 165 and the head waters of the Deschutes River. [1985 c.560 §3]
Note:
543.175 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 543 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
PRELIMINARY PERMITS; LICENSES
543.210 Preliminary permits; application;
contents; fee. (1) Any person who proposes to operate
a hydroelectric project in Oregon shall apply for a state preliminary permit.
Any person who applies to the Federal Energy Regulatory Commission for a
preliminary permit to operate a hydroelectric project shall, at the same time,
apply for a state preliminary permit. The Water Resources Commission may issue
a preliminary permit to any person possessing the qualifications of a licensee
as specified in ORS 543.010 to 543.610.
(2)
The application for a preliminary permit shall set forth:
(a)
The name and post-office address of the applicant;
(b)
The approximate site of any proposed dam or diversion;
(c)
The amount of water in cubic feet per second;
(d)
The theoretical horsepower; and
(e)
Any other data the commission may by rule require.
(3)
Upon receipt of an application for a preliminary permit the commission shall
indorse on the application the date of receipt, and keep a record of the
receipt of the application. The date so indorsed shall determine the priority
of the use of water initiated under the provisions of ORS 543.010 to 543.610.
(4)
At the time of filing application for preliminary permit the applicant shall
pay to the state the portion of the total project fee required in ORS 543.280,
to cover costs of recording, publishing notices and making investigations
necessary to determine whether or not a preliminary permit should be granted. [Amended
by 1961 c.224 §15; 1985 c.673 §147; 1991 c.869 §8]
543.220 Notice of filing of application;
waiting period. (1) If an application is made
for a preliminary permit, after said application has been referred to hearing
the Water Resources Commission shall give written notice of the filing of the
application to:
(a)
Any municipality or other person or corporation that, in the judgment of the
commission, is likely to be interested in or affected by the proposed project;
and
(b)
The owner of any land that is:
(A)
Adjacent to any portion of the stream in which the quantity of water will be
decreased by the project; or
(B)
Adjacent to the site of the proposed project.
(2)
The commission shall also publish notice of the application once each week for
at least two successive weeks and for such further time, if any, as the
commission shall determine, in a newspaper of general circulation in each
county in which the project covered by the application is located.
(3)
No application for the appropriation or use of water for the development of
1,000 theoretical horsepower or more shall be granted until at least six months
after the application for a preliminary permit has been filed. [Amended by 1961
c.224 §16; 1975 c.581 §27; 1985 c.569 §23; 2011 c.52 §9]
543.225 Hearing on application; notice;
policy. (1) The Water Resources Commission
shall conduct a public hearing on any application or amended application for a
preliminary permit or for a license for a major project of more than 100
theoretical horsepower and an application for preliminary permit or license for
a minor project of less than 100 theoretical horsepower if the commission
concludes it is in the public interest to do so.
(2)
The commission shall give proper notice of the public hearing on an application
under subsection (1) of this section, to the applicant and to each protestant,
if any. After the hearing, if the commission determines that the proposed
project does not comply with the standards set forth in ORS 543.017 or rules
adopted by the commission under ORS 543.017, or would otherwise impair or be
detrimental to the public interest so far as the coordinated, integrated state
water resources policy is concerned, it shall enter an order rejecting the
application or requiring its modification to conform to the public interest, to
the end that the highest public benefit may result from the proposed project.
The order may set forth any or all of the provisions or restrictions to be
included in a preliminary permit or license concerning the use, control and
management of the water to be appropriated for the project, including, but not
limited to, a specification of reservoir operation and minimum releases to
protect the public interest.
(3)
In determining whether the proposed project would impair or be detrimental to
the public interest, the commission shall have due regard for:
(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
thereof, 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.
(4)
After the entry of the order specified in subsection (2) of this section, the
application for a preliminary permit or for a license shall be referred to the
Water Resources Director for further proceedings consistent with the commission’s
order. [1955 c.707 §42; 1961 c.224 §17; 1975 c.581 §28; 1985 c.569 §20; 1985
c.673 §148]
543.230 Hearings on application; rules;
protest. (1) The Water Resources Commission
shall, by order or rule, provide for the time and manner of hearings upon
applications. However, upon request by any person made within 30 days after the
Water Resources Director issues an order pertaining to cumulative impacts under
ORS 543.255, the Water Resources Commission shall conduct a contested case
hearing in accordance with the applicable provisions of ORS chapter 183 and any
rules adopted by the commission.
(2)
Every application for the appropriation of water for the generation of
electricity subject to the terms of ORS 543.010 to 543.610 shall be subject to
protest or remonstrance on behalf of the public, or any district organized for
public purposes, or any interested private person, on the ground that the
proposed construction, development or improvement would damage or destroy the
use or utility of the stream or other body of water involved for other beneficial
purposes, including propagation of fish, scenic, aesthetic, recreational, park,
highway or other beneficial use. All protests and remonstrances under this
subsection must be filed with the commission within the time specified in the
notice and must be in writing and verified by the parties protesting, and a
certified copy thereof shall be served upon the applicant for the permit.
However, in the discretion of the administrative law judge, at the time of the
hearing any interested party may make an oral protest if there exists any good
reason therefor, and the administrative law judge shall allow the applicant to
be heard in opposition thereto. Every protest or remonstrance under this
subsection which is not filed and served as required in this subsection shall
be deemed waived. [Amended by 1955 c.673 §4; 1955 c.707 §40; 1961 c.224 §18;
1993 c.544 §7; 1995 c.416 §41; 1999 c.849 §115; 2003 c.75 §98]
543.240
[Repealed by 1991 c.869 §15]
543.250 Permit; duration; transfer;
cancellation; priority; terms and conditions; denial.
A preliminary permit may be issued for a period not exceeding a total of three
years. It shall not be transferable except upon written approval of the Water
Resources Commission, and may be canceled by order of the commission at any
time upon proof to the commission’s satisfaction, after hearing, that the
holder is not in good faith complying with the provisions of the permit. The
holder of a preliminary permit which has not been canceled shall have priority
of right to make application for a license covering the project for which the
preliminary permit was issued, within the term of the permit or any lawful
extension thereof. Except as otherwise specified in ORS 543.010 to 543.610, the
commission may fix the terms and conditions of any preliminary permit issued
thereunder, and each preliminary permit issued shall set forth all the terms
and conditions. The commission may decline to grant any application for a
preliminary permit. [Amended by 1985 c.673 §149; 1993 c.63 §1]
543.255 Determination of cumulative
impacts of proposed hydroelectric power projects; consolidated review;
applicability. (1) Whenever the Water Resources
Department receives an application to appropriate water for a new hydroelectric
project under ORS 537.140 to 537.320 or for a hydroelectric permit or license
under ORS 543.010 to 543.610, the department shall determine whether the
impacts of the project would be cumulative with:
(a)
Impacts of other proposed hydroelectric projects for which an application is pending
before the department; or
(b)
Existing hydroelectric projects in the same river basin.
(2)
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.
(3)
If the department determines that pending applications or existing projects may
have cumulative effects, the Water Resources Commission shall conduct a
consolidated review before approving any application in the affected river
basin. A consolidated review process shall be conducted as a contested case
hearing under the applicable provisions of ORS chapter 183 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. In its final order on an application, the commission or
the department shall include its findings on cumulative impacts. The findings
of the commission or department under this section must be sufficient to
support the department’s decision to approve or deny an application.
(4)
Any application for a project in the same river basin filed after the
commission begins a consolidated review contested case hearing shall not be
reviewed until the commission has issued final findings on cumulative effects
for all projects included in the consolidated review proceeding.
(5)
At the request of an applicant for a permit to appropriate water for a new
hydroelectric project under ORS 537.140 to 537.320 or for a permit or license
under ORS 543.010 to 543.610, the commission may immediately upon receiving
such application begin the consolidated review proceeding under subsection (3)
of this section. [1985 c.569 §10; 1985 c.673 §193; 1993 c.544 §8; 1995 c.229 §4;
1995 c.416 §39]
543.257 [1985
c.569 §11; 1985 c.673 §194; repealed by 2007 c.354 §1]
543.260 Licenses; duration; terms and
conditions; termination; denial of application; preference of municipality or
utility district. (1) A license may be issued by
the Water Resources Commission to any qualified person for a period not
exceeding 50 years. If the project is subject to regulation by the Federal
Energy Regulatory Commission, the term shall be concurrent with and expire upon
expiration of the federal license for the project. Each license shall be conditioned
upon acceptance by the licensee of all the terms and conditions of ORS 543.010
to 543.610, and such further terms and conditions as the commission may
prescribe, not inconsistent with those sections. All such terms and conditions,
and their acceptance by the licensee, shall be expressed in the license. A
license may be terminated for the reasons and in the manner provided in ORS
543.010 to 543.610. The form of license containing all the terms and conditions
may be set forth in the preliminary permit.
(2)
The commission may deny any application for a license if it appears that the
applicant has failed to comply substantially with the terms and conditions of
the preliminary permit or, notwithstanding the commission has issued a
preliminary permit, if in the judgment of the commission the project is
unfeasible or the public interest requires the denial thereof.
(3)
A municipal corporation or people’s utility district shall be given preference
on any project in the issuance of a license, upon condition that the municipal
corporation or people’s utility district exercising such preference right shall
be required to reimburse the holder of a preliminary permit for all reasonable
actual expenditures made by the holder upon the project described or referred
to therein. [Amended by 1983 c.740 §214b; 1985 c.673 §150; 1995 c.229 §5]
543.265 Testing of fish protection
measures as condition for hydroelectric project permit or license; scope and
cost. The Water Resources Department shall
impose as a condition to any water right permit to appropriate water for
hydroelectric purposes granted under ORS 537.211 or any license granted under
ORS 543.260 that the person operating the hydroelectric project shall, during
the operational lifetime of the project, perform or allow the State Department
of Fish and Wildlife to perform, any tests or studies required by the
department to evaluate the effectiveness of measures for the protection of
fish. The scope and cost of these studies will be negotiated between the State
Department of Fish and Wildlife and the operator. [1985 c.674 §6; 1987 c.158 §116;
1995 c.416 §40]
Note:
543.265 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 543 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
543.270 Preference in granting permit or
license; municipal use. In issuing preliminary permits,
and in issuing licenses where no preliminary permit is held by an applicant for
a license, preference shall be given to the application which appears to the
Water Resources Commission to be best adapted to conserve and utilize the water
power involved. However, any application for the use of water made by any
municipal corporation of this state under any law of the state, before a
preliminary permit is issued, or before a license is issued when no preliminary
permit upon the proposed project has been issued, shall always have preference.
[Amended by 1985 c.673 §151]
543.280 Fee payments by licensee.
(1) Any person who applies to the Federal Energy Regulatory Commission for a
preliminary permit to operate a hydroelectric project shall, at the same time,
apply for a state preliminary permit. An applicant for a state preliminary
permit for a new hydroelectric project shall submit to the Water Resources
Commission a complete copy of any application for the project filed with the
Federal Energy Regulatory Commission or other federal agency. For preliminary
permits, if the copy of the federal application is filed with the commission at
the same time it is filed with the federal agency, at the commission’s
discretion, such copy may fulfill the requirements of ORS 543.210, except for
the fee requirement in ORS 543.210 (4).
(2)
An applicant for a preliminary permit or license for a project or for a permit
to appropriate water for power purposes shall pay to the state a project fee
based on the capacity of the project to cover costs of recording, publishing
notices, conducting the hearing required by ORS 543.225 and making
investigations necessary to determine whether a permit should be granted.
(3)
The amount of the total project fee required under subsection (2) of this
section shall be:
(a)
For a project of less than 100 theoretical horsepower, $1,000.
(b)
For any project of 100 theoretical horsepower or more, an amount equal to
$5,000 plus $1,000 per megawatt for each megawatt of capacity in excess of five
megawatts, up to a maximum of $100,000.
(4)
Except for projects of less than 100 theoretical horsepower, the project fee
required under subsection (2) of this section shall be payable in advance
before each of four stages of project review as established by rule by the
Water Resources Commission. The payment schedule shall not require the applicant
to pay more than $2,500 of the project fee at the first stage of project review
or more than 50 percent of the total project fee in the first two stages of the
project review. For a project of less than 100 theoretical horsepower, the
applicant shall pay 50 percent of the fee at the time of filing the application
for a preliminary permit or application for a permit to appropriate water for
power purposes and the remaining 50 percent before the commission issues a
license or a water right permit. A person may withdraw an application for a
hydroelectric project after any stage of project review without further payment
of fees under this section.
(5)
In addition to the project fee required under subsection (2) of this section,
any applicant for a project to be sited at a location where anadromous fish or
threatened or endangered species are present shall pay a surcharge of 30
percent of the total project fee. The surcharge shall be collected in
conjunction with the project fee at each stage of the project review.
(6)
The commission shall provide an applicant a statement itemizing the staff time,
resources and costs expended to review the application at each project stage.
The statement shall include the costs expended by the State Department of Fish
and Wildlife and the Water Resources Department specific to the project. [Amended
by 1957 c.581 §1; 1985 c.673 §152; 1991 c.869 §9]
543.290 Filing of maps, plans, estimates
and other materials; incorporation as part of license; alteration; further
statements and data. The applicant for a license
shall submit to and file with the Water Resources Commission:
(1)
All maps, plans, specifications and cost estimates as may be required by the
commission for a full understanding of the proposed project. The maps, plans and
specifications, when approved by the commission, shall become a part of the
license, if one is issued upon the application, and thereafter no change shall
be made in any such maps, plans and specifications until the proposed change
has been approved by the commission. When a proposed change is approved by the
commission, the changes shall become a part of the license.
(2)
Any further statements and data as may be required by the commission concerning
the proposed project, the market to be served, the financial responsibility of
the applicant, the plan of financing and any other matters deemed material by
the commission. [Amended by 1985 c.673 §153]
543.300 Conditions governing license;
fees; waiver of conditions. Any license issued under ORS
543.010 to 543.610 shall take into consideration, and shall be on, the
following conditions:
(1)
That the proposed project shall be such as, in the judgment of the Water
Resources Commission, is well adapted to the development and utilization of the
water power involved.
(2)
That the licensee shall construct and build the project according to the maps,
plans and specifications filed with and approved by the commission, and within
the time fixed by the license or by any lawful extension thereof.
(3)
The operations of the licensee so far as they affect the use, storage and
discharge from storage of waters affected by the license, shall at all times be
controlled by such reasonable rules as the commission may prescribe for the
protection of life, health and property, and in the interest of the fullest
practicable conservation and utilization of such waters for power purposes and
for other beneficial public uses, including recreational purposes. The licensee
shall release water from the project reservoir at such rate in cubic feet per
second, or such volume in acre-feet per specified period of time, as the
commission may prescribe.
(4)
That the licensee will maintain the project, and each part thereof, in good
order and repair and in efficient operation, for the development and
transmission of electricity to its reasonable capacity; shall make all
necessary renewals and replacements as required; and shall maintain and operate
the project, and all parts thereof, conformably to the rules of the commission
not inconsistent with ORS 543.010 to 543.610.
(5)
That the licensee will pay to the state annually not more than $1 for each
horsepower covered by the license. This sum shall constitute a first lien upon
the project, which lien may be enforced by suit in equity or other appropriate
proceeding, or payment thereof may be enforced by the state in an action for
debt. Payment of such license fees may be waived by the commission during all
or any part of the period of construction. The fees need not be uniform
throughout the entire period of the license, but may be for different amounts
for different periods. The amount of the license fees, within the minimum and
maximum limits herein specified, shall be determined by the commission and
expressed in the license.
(6)
Other and further conditions not inconsistent with ORS 543.010 to 543.610 as
the commission may require in the public interest.
(7)
In issuing a license for a minor project of not more than 100 horsepower the
commission may waive all or any of the conditions and requirements of ORS
543.010 to 543.610 except the period for which a license may be issued, and the
annual charge as determined by the commission under subsection (5) of this
section. In issuing licenses for projects in excess of 100 horsepower for which
the applicants are required to secure permits and licenses from the United
States as a condition precedent to the construction of the projects, the
commission may waive and modify such of the terms, conditions and requirements
of ORS 543.010 to 543.610, except the period for which a license may be issued
and the annual charge as determined by the commission under subsection (5) of
this section, as the commission, by order, after full investigation and public
hearing, shall find to make impracticable the construction of such projects.
During the time that a licensee is not a public utility and does not sell
electric energy, and does not sell bonds or other evidences of debt against the
licensee’s plant, the commission may waive the accounting and amortization requirements
of ORS 543.010 to 543.610, even where the project involved exceeds 100
horsepower.
(8)
Subsection (5) of this section does not apply to a water right reauthorized
pursuant to ORS chapter 543A. [Amended by 1959 c.560 §1; 1961 c.224 §19; 1985
c.673 §154; 1999 c.873 §23]
543.310 Disposition of moneys collected.
Except as provided in ORS 536.015, all moneys collected under the provisions of
ORS 543.010 to 543.610 shall forthwith be paid to the State Treasurer and
become a part of the General Fund. [Amended by 1985 c.674 §10; 1991 c.869 §10]
543.320 Effect of amendment or repeal of
law. The right to alter, amend or repeal ORS
543.010 to 543.610, or any part thereof, hereby is expressly reserved; but no
such alteration, amendment or repeal shall affect any license theretofore
issued under the provisions of ORS 543.010 to 543.610, or the rights of any
licensee thereunder, unless expressly assented to by the licensee.
TIME FOR CONSTRUCTION; TERMINATION,
REVOCATION OR TRANSFER OF LICENSE
543.410 Construction of project; time for
commencement and completion; supply of service; extension of time;
nonperformance; termination of license. (1) The
licensee shall commence the construction of the project works within the time
fixed in the license, which shall not be more than two years from the date
thereof, shall thereafter in good faith and with due diligence prosecute such
construction, and shall, within the time fixed in the license, complete and put
into operation such part of the ultimate development as the Water Resources
Commission considers necessary to supply the reasonable needs of the then
available market, and shall, from time to time thereafter construct such
portion of the balance of the development as the commission directs, so as to
supply adequately the reasonable market demands until development is completed.
(2)
The period for commencement of construction may be extended once but not longer
than two additional years, and the period for the completion of construction
carried on in good faith and with reasonable diligence may be extended by the
commission when not incompatible with the public interests.
(3)
If the licensee does not commence actual construction of the project works or
of any specified part of the project works, within the time prescribed in the
license or as extended by the commission, then, after due notice given, the
license shall, as to the project works or part of the project works, be
terminated upon written order of the commission. [Amended by 1985 c.673 §155]
543.420 Noncompletion of construction
within prescribed time; judicial proceedings; sale of property; disposition of
proceeds; rights of purchaser. If
construction of a project under license has been begun but has not been
completed within the time prescribed in the license or in any lawful extension
thereof, then the Attorney General, upon request of the Water Resources
Commission, shall institute proceedings in the circuit court for the county in
which some part of the project is situated, for termination of the rights of
the licensee under the license, the sale of the property embraced in the
project, and for such other relief as the case may demand. Any judgment or
decree entered in the proceeding shall provide for distribution of the proceeds
of the sale to the parties equitably entitled thereto. The purchaser at any
such sale shall take the property subject to all the terms and conditions of
the license under which construction was begun, except insofar as they may be
modified by the commission. [Amended by 1985 c.673 §156]
543.430 Proceedings after completion of
project for violation of license terms; authority of court; sale of project.
The Attorney General shall, upon request of the Water Resources Commission,
institute proceedings in the circuit court for the county in which any project,
or the major part of a project is situated, after the project has been
completed, for the purpose of revoking for violation of its terms any license
issued under ORS 543.010 to 543.610, or for the purpose of correcting or remedying
by injunction, mandamus or other appropriate writ or decree, any act by the
licensee in violation of the terms of those sections, or of any rule or order
of the commission. The court shall have jurisdiction of the proceedings and may
issue and execute all necessary process to compel compliance with the terms of
any license, the terms of ORS 543.010 to 543.610, the lawful orders and rules
of the commission. If a decree revoking a license is entered, the court may
sell the whole, or any part, of a project under the license; wind up the
business of the licensee conducted in connection with the project; distribute
the proceeds to the parties equitably entitled thereto; and make and enforce
such further orders and decrees as equity and justice may require. At any such
sale the purchaser shall take the rights and privileges belonging to the
licensee and shall perform all the duties of the licensee under the license.
The remedies provided by this section are in addition to the remedies otherwise
provided by ORS 543.010 to 543.610. [Amended by 1985 c.673 §157]
543.440 Transfer of license, rights or
property; effect. No voluntary transfer of any
license or any rights under a license or of any property acquired, constructed
or operated pursuant to license issued under ORS 543.010 to 543.610 shall be
made without written approval of the Water Resources Commission. Any successor
or assignee of any licensee under any project acquired, constructed or operated
by licensee, whether by voluntary transfer approved by the commission or sale
upon foreclosure, execution or otherwise, shall be subject to all the terms and
conditions of the license and of the provisions of ORS 543.010 to 543.610 to
the same extent as though the successor or assignee was the original licensee thereunder.
Any mortgage, deed of trust, or other lien suffered or created upon any such
project shall be subject and subordinate to all the terms and conditions of ORS
543.010 to 543.610. However, the provisions of this section shall not apply to
any transfer, voluntary or involuntary, to the state or any municipal
corporation thereof, and upon such transfer the license shall terminate. [Amended
by 1985 c.673 §158]
Note:
Sections 1 and 2, chapter 63, Oregon Laws 2010, provide:
Sec. 1. (1)
Notwithstanding ORS 543.440, and subject to subsections (2) and (3) of this
section, a license issued for a project under ORS 543.010 to 543.610 shall
continue in effect following a transfer of the license, rights or property of
the project to a county if:
(a)
The project is located in the Umatilla Basin;
(b)
The transfer of the license, rights or property is to Umatilla County;
(c)
The transfer occurred through the foreclosure of a tax lien; and
(d)
The transfer occurred on or before January 1, 2010.
(2)
The license for a project described in subsection (1) of this section, and any
water right that is included in the license, shall terminate:
(a)
Upon Umatilla County commencing to operate the project for purposes of
hydroelectric generation;
(b)
Two years after transfer of the license, rights or property of the project to
Umatilla County, unless the county has transferred all county-held licenses,
rights and property of the project to a new owner that is unaffiliated with the
county; or
(c)
If a new owner of the project fails to comply with subsection (3) of this
section prior to operating the project.
(3)
If a project is transferred as described in subsection (2)(b) of this section:
(a)
The project license authorizing the use of water by the project for hydroelectric
purposes, and any water right included in the license, is subordinate in
priority to any in-stream water right for which a water right certificate is
issued on or before the effective date of this 2010 Act [March 18, 2010].
(b)
Prior to the new owner operating the project, the Water Resources Department
shall modify the conditions of the license, and of any water right included in
the license, to include an implementation plan for fish passage and fish
screening approved by the State Department of Fish and Wildlife as described in
paragraph (c) of this subsection.
(c)
The new owner of the project shall develop an implementation plan for fish
passage and fish screening for the project. The implementation plan shall
identify project repairs or modifications necessary for the project to meet the
fish passage and fish screening criteria of the State Department of Fish and
Wildlife. The new owner shall submit the plan to the State Department of Fish
and Wildlife for approval. The department shall consult with the Confederated
Tribes of the Umatilla Indian Reservation before approving or disapproving a
submitted plan. Upon approval of a plan by the State Department of Fish and
Wildlife, the department shall notify the Water Resources Department to
incorporate the approved plan as a condition of the project license and of any
water right included in the license.
(d)
An implementation plan may contain provisions allowing the new owner to operate
the project while project repairs or modifications are in progress. An
implementation plan shall include, but need not be limited to, the following:
(A)
Provisions for the protection of salmonids and lamprey.
(B)
Interim measures identified by the State Department of Fish and Wildlife to
reduce entrainment and improve fish passage. The implementation plan shall
require that the new owner install the interim measures prior to the new owner
operating the project.
(C)
A schedule for making repairs or modifications that provides for all of the
repairs and modifications to be completed no later than four years after the
project resumes operation.
(D)
Provisions for monitoring, reporting and site access to the extent the State
Department of Fish and Wildlife considers necessary to ensure compliance with
the implementation plan.
(E)
Procedures for immediately addressing significant fish mortality, or
significant delay in fish passage, resulting from project operations. The
procedures shall include, at a minimum, provisions for giving notice to the
State Department of Fish and Wildlife and Water Resources Department, and for
suspending project operations until the cause of the mortality or delay is
identified and remedied.
(4)
Notwithstanding any provision of a license for a project described in
subsection (1) of this section, the license is not subject to termination based
upon a failure to make beneficial use of water:
(a)
During the period of any legal proceeding for the foreclosure of a tax lien;
(b)
During a period, not exceeding two years, in which Umatilla County owns the
project; or
(c)
During a period, not exceeding five years following transfer of the license,
rights or property of the project from Umatilla County to a new owner, if the
new owner is actively engaged in:
(A)
Attempting to obtain government authorization for operation of the project; or
(B)
Attempting to install interim measures to reduce entrainment and improve fish
passage under an implementation plan.
(5)
If the water right that is included in the license of a project described in
subsection (1) of this section is terminated based upon a failure to make
beneficial use of water, the Water Resources Department shall convert the water
right to an in-stream water right as provided under ORS 543A.305.
(6)
Subject to subsections (1) to (4) of this section, a new owner that acquires a
license, right or property of a project described in subsection (1) of this
section following Umatilla County ownership of the license, right or property
is considered a successor or assignee of an original licensee for purposes of
ORS 543.440. [2010 c.63 §1] Sec. 2.
Section 1 of this 2010 Act is repealed on January 2, 2018. The repeal of
section 1 of this 2010 Act does not terminate or alter the status, terms or
conditions of any license, right, property, certificate, permit, water right or
other authorization in effect immediately prior to the repeal of section 1 of
this 2010 Act. [2010 c.63 §2]
543.510
[Repealed by 1995 c.229 §9]
543.520
[Repealed by 1995 c.229 §9]
FINANCING OF PROJECTS; LIENS; BOND OF
LICENSEE
543.525 ORS 543.530 to 543.550 not
applicable to regulated utilities. The
provisions of ORS 543.530 to 543.550 shall not apply to any licensee which is a
utility as defined in ORS 757.005 and regulated by the Public Utility
Commission of Oregon. [1965 c.333 §1]
Note:
543.525 was enacted into law by the Legislative Assembly but was not added to
or made a part of 543.010 to 543.610 by legislative action. See Preface to
Oregon Revised Statutes for further explanation.
543.530 Issuance by licensee of stocks,
bonds or other interest without authorization of Water Resources Commission
prohibited. (1) No licensee shall issue any share
of corporate stock, or any bond, or other evidence of interest in or
indebtedness of the licensee, or assume any obligation or liability as lessor,
lessee, guarantor, indorser, surety or otherwise, in respect of the corporate
shares, bonds or other evidence of indebtedness of any person in connection
with the financing, acquisition, construction, maintenance or operation of any
project, unless and until, and then only to the extent that, upon application
by the licensee, and after investigation by the Water Resources Commission of
the purposes and uses of the proposed issue and the proceeds thereof, or of the
proposed assumption of obligation or liability, the commission, by order,
authorizes the issue or assumption. The commission shall make the order only if
the commission finds that the issue or assumption:
(a)
Is for some lawful object of the licensee, compatible with the public interest,
and is necessary to, or appropriate for, the proper performance by the licensee
of the terms and conditions of the license and will not impair the licensee’s
ability to perform the terms and conditions; and
(b)
Is reasonably necessary and appropriate for such purposes.
(2)
The commission may grant or deny the application to authorize the issue or
assumption, or grant the same in part and deny in part, and may modify the
provisions of any previous order and prescribe such terms and conditions as the
commission considers necessary or appropriate in the premises. Every such
application shall be made in such form and contain such data as the commission
by rule may prescribe.
(3)
No licensee or any director, officer, attorney or agent thereof shall knowingly
assent to or concur in any issue or assumption contrary to the provisions of
this section, or the orders of the commission made pursuant to this section or
ORS 543.540. [Amended by 1953 c.271 §1; 1985 c.673 §159]
543.540 Consideration for bonds, stocks
and other securities; restrictions; corporate shares; sale price of securities;
discount from face value. No bonds, notes or other
obligations or securities or corporate stock shall be issued in connection with
the financing, construction or acquisition of any project or part of a project,
under a license issued pursuant to ORS 543.010 to 543.610, except for cash or
property. If issued for property, the price or value at which the property is
to be acquired by the licensee and made a part of any such project must be
submitted to and approved by the Water Resources Commission before it is
purchased or acquired. All corporate shares issued in connection with any such
project shall have a nominal or par value. All bonds, notes or other
obligations or securities, and all shares of corporate stock issued or sold by
any licensee in connection with the acquisition, construction or financing of
any project, or part of a project, shall be issued or sold or used in the
purchase or acquisition of property at the full face or nominal value thereof,
unless the commission consents to and approves the sale for cash, or the use of
cash in the purchase or acquisition of property at a discount from the face or
nominal value of the property. Any discount so approved and consented to shall
be considered a part of the cost of financing. [Amended by 1985 c.673 §160]
543.550 Liens prohibited; exceptions; what
may be included by mortgage, trust deed, or sale; determination of investment
in case of sale of part. No lien for labor, services,
materials, machinery or equipment shall exist or be acquired or enforced upon
any property acquired, constructed or made a part of any project under license
issued pursuant to ORS 543.010 to 543.610. No property shall be put into or
made part of any such project unless owned by the licensee free and clear of
all liens and claims whatsoever, except a lien created by the licensee upon the
whole property embraced in the project by mortgage or deed of trust, to the end
that the entire property embraced in the project be kept and maintained as an
indivisible whole. The mortgage or deed of trust may include other property.
Any voluntary sale or any sale upon a judgment of foreclosure, execution or
otherwise, shall be of the whole property embraced in the project unless the
Water Resources Commission, by an order in writing, consents to and approves of
a sale of a part of the property. If less than the whole of any property
embraced in a project is sold with the consent and approval of the commission, the
commission shall determine at the time of the sale the actual net investment in
the part sold, as well as the actual net investment in the part remaining
unsold. [Amended by 1985 c.673 §161; 2003 c.576 §496]
543.560 Bond of licensee or letter of
credit securing claims of suppliers; enforcement of obligation; action for sums
due State Accident Insurance Fund Corporation.
Before entering upon the work of construction or acquisition of any project,
the licensee shall execute to the state a bond, with good and sufficient
sureties or an irrevocable letter of credit issued by an insured institution,
as defined in ORS 706.008, in either case, to be approved by the Water
Resources Commission, to the effect that the licensee shall promptly make
payment to all persons supplying labor, services, material, machinery or
equipment for the prosecution of the work, and all amounts due the State
Industrial Accident Fund from the licensee. Any person supplying the licensee
with any labor, services, material, machinery or equipment for prosecution of
the work who has not been paid therefor within 60 days after the same has been
supplied, or when payment is due according to any special agreement, may,
within one year after any payment has become due, bring an action against the
licensee, and the sureties upon the bond, or the letter of credit issuer for
payment of the amount due to the person, and prosecute the same to final
judgment and execution. The action shall be brought in the name of the state
upon the relation of the person to whom payment is due. The state, at the
request of the State Accident Insurance Fund Corporation may prosecute an
action to judgment and execution against the licensee and the sureties upon the
bond or letter of credit for all sums due the State Industrial Accident Fund. [Amended
by 1985 c.673 §162; 1991 c.331 §80; 1997 c.631 §487]
ACQUISITION OF PROJECT BY STATE OR
MUNICIPALITY
543.610 Acquisition of project by state or
municipality. (1) Upon not less than two years’
notice in writing the state, or any municipality thereof, shall have the right
at any time to take over and thereafter to maintain and operate any project
constructed under a license pursuant to ORS 543.010 to 543.610, upon payment of
just compensation, including such reasonable damages, if any, to valuable,
serviceable and dependent property of the holder of the license, not taken
over, as may be caused by the severance therefrom of the property taken, and
shall assume all contracts entered into by the licensee which are required to have
and do have the express approval of the Water Resources Commission. If the sum
to be paid cannot be agreed upon by the holder of the license and the
municipality or the state, as the case may be, it shall be determined in a
proceeding in equity instituted by the state or municipality, as the case may
be, in the circuit court of the county in which the major part of the project
is located.
(2)
There is also expressly reserved to the state, and any municipality thereof,
the right to take over all or any part of any project by condemnation
proceedings as may be provided by the laws of Oregon or the charter of any such
municipality. [Amended by 1983 c.799 §8]
543.620
[Repealed by 1995 c.229 §9]
POWER GENERATION BY DISTRICTS
543.650 Policy.
The Legislative Assembly finds that a significant potential exists for the
development of the hydroelectric generation capabilities of water systems
serving domestic water supply districts, irrigation districts, drainage
districts, water improvement districts and water control districts. The
Legislative Assembly also finds that the development of such hydroelectric
generation capabilities is desirable for meeting the electrical energy needs of
the citizens of the State of Oregon. It is the intent of the Legislative Assembly
to provide domestic water supply districts, irrigation districts, drainage
districts, water improvement districts and water control districts with the
authority and the right to exercise municipal preference in the development of
hydroelectric generation capabilities in connection with their water systems.
Further, it is the intent of the Legislative Assembly that the development of
hydroelectric generation capabilities under ORS 543.650 to 543.685 does not
become the primary function of domestic water supply districts, irrigation
districts, drainage districts, water improvement districts and water control
districts. [1981 c.420 §1]
543.655 Definitions for ORS 543.650 to
543.685. As used in ORS 543.650 to 543.685,
unless the context requires otherwise:
(1)
“District” means any one of the following:
(a)
A domestic water supply district organized under ORS chapter 264.
(b)
An irrigation district organized under ORS chapter 545.
(c)
A drainage district organized under ORS chapter 547.
(d)
A water improvement district organized under ORS chapter 552.
(e)
A water control district organized under ORS chapter 553.
(2)
“Principal Act” means the statutes, other than ORS 543.650 to 543.685, which
describe the powers of a district, including, but not limited to, the statutes
under which a district is proposed or is operating.
(3)
“Water system” means any structure or facility constructed by persons and used
by a district to achieve the district’s purpose under the district’s principal
Act whether or not such structure or facility is owned by the district. [1981
c.420 §2; 1985 c.561 §4]
543.660 Authority of district to enlarge
or modify water system and power generating facilities; joint district
ventures; prohibitions; sale of energy; regulations.
(1) A district, alone or jointly with other districts, electric cooperatives,
as defined in ORS 261.010, people’s utility districts, a cooperative as defined
in ORS 62.015, municipal corporations authorized to engage in generating and
distributing electricity or public utilities, as defined in ORS 757.005,
engaged in the business of generating and distributing electricity, may enlarge
or modify its water system for the purpose of generating electricity and may
operate and maintain such facilities, notwithstanding any provision of
paragraph (a) of this subsection. If a district already has hydroelectric
generating capability, the district may enlarge or modify the district’s
facilities used for generation of hydroelectric power. Two or more districts
may, as a joint venture, generate electricity under ORS 543.650 to 543.685 as
long as the structure or facility that is enlarged or modified to produce the
electricity is part of the water system of at least one of the districts
participating in the joint venture. However, a district may not:
(a)
Construct, acquire, operate or maintain any facility or structure that is not
an enlargement or modification of the district’s water system solely or
primarily for the purpose of generating electricity; or
(b)
Be created solely or primarily for the purpose of constructing, acquiring,
operating or maintaining hydroelectric facilities.
(2)
A district shall sell the excess electric energy generated at such
hydroelectric facilities to the Bonneville Power Administration, a public utility
as defined in ORS 757.005, an electric cooperative as defined in ORS 261.010, a
people’s utility district, a cooperative as defined in ORS 62.015, a municipal
corporation or a municipally owned utility. Any sale of excess electric energy
shall be made in accordance with terms and conditions of the Federal Power Act,
as amended by the Public Utility Regulatory Policies Act of 1978. As used in
this subsection, “excess electric energy” means electric energy not used by the
district to meet its own electric pumping requirements.
(3)
The board of directors of the district shall establish regulations governing
electric energy generation and sale under this section.
(4)
Electricity shall be sold under this section only at wholesale. [1981 c.420 §3;
1985 c.561 §5; 1995 c.195 §44; 2003 c.802 §80; 2005 c.22 §381]
543.662 Authority of district to develop
joint project with private person; restrictions.
A district may contract with a private person to enlarge or modify the district’s
water system for the purpose of generating hydroelectric power. The district
shall retain sufficient benefit and interest in, and control of a joint project
as necessary for the project to be considered a district project. A district
and a private person developing a joint project under ORS 543.650 to 543.685
must comply with the rules adopted by the Water Resources Commission under ORS
543.664. [1985 c.561 §2]
543.664 Rules relating to joint projects
of districts and private persons. The Water
Resources Commission shall establish rules necessary to carry out the
provisions of ORS 543.662. The rules shall include the amount of control over
and interest in a joint project a district must retain in order to receive the
benefit of the municipal preference and proceed under the municipal application
process set forth in ORS chapter 537. [1985 c.561 §3]
543.665 Authority to issue revenue bonds
to acquire hydroelectric facilities. (1) In
addition to any other authority under its principal Act to issue bonds, a
district, when authorized at any properly called election, shall have the power
to sell and dispose of revenue bonds to construct or acquire hydroelectric
facilities in conformance with ORS 543.650 to 543.685 to develop the
hydroelectric generation capabilities of the water system, and to pledge as
security therefor all or any part of the unobligated net revenue of the
district or system.
(2)
Revenue bonds may be issued by a district to construct or acquire hydroelectric
facilities in connection with its water system in conformance with ORS 543.650
to 543.685, including, but not limited to, dams, canals, generating plants,
transmission lines, other power equipment and acquire the necessary property
and rights therefor, for the purpose of generating hydroelectric energy.
(3)
The revenue bonds authorized by this section shall be issued in the same manner
and form as are general obligation bonds of the district, but they shall be
payable, both as to principal and interest, from revenues only, as specified by
this section. The revenue bonds shall not be subject to the percentage
limitation applicable to general obligation bonds and shall not be a lien upon
any of the taxable property within the corporate limits of such district, but
shall be payable solely from such part of the revenues of the district as
remain after payment of obligations having a priority and of all expenses of
operation and maintenance of the district, including any taxes levied against
it. All revenue bonds shall contain a clause reciting that both the principal and
interest are payable solely from operating revenues of the district remaining
after paying such obligations and expenses. [1981 c.420 §4; 1985 c.561 §6]
543.670 Manner of issuance of revenue
bonds. All revenue bonds issued under ORS
543.665 shall be issued as prescribed in ORS chapter 287A, but the requirements
of ORS 287A.150 do not apply. [1981 c.420 §5; 1983 c.557 §12; 2007 c.783 §216]
543.675 Power of eminent domain not to be
exercised to acquire hydroelectric facilities.
Notwithstanding any powers of eminent domain and condemnation given to a
district under its principal Act, a district shall not exercise any power of
condemnation or eminent domain to condemn, appropriate or acquire real property
for the purpose of constructing, acquiring, operating or maintaining
hydroelectric facilities. [1981 c.420 §6]
543.680 Compliance with water appropriation
laws required. A district shall comply with all
applicable provisions of ORS chapter 537 before enlarging or modifying the
district’s water system for the purpose of generating hydroelectric energy. [1981
c.420 §7; 1985 c.561 §7]
543.685 District board to require
weatherization; Weatherization Fund; purpose. (1) If
the board of directors of a district has not adopted an ordinance, resolution
or administrative rule requiring the weatherization of the buildings of the
district, the district shall deposit 10 percent of any revenues derived from
the sale of excess electric energy under ORS 543.660 with the officer serving
as the treasurer of the district to be credited to a special fund designated
its Weatherization Fund. Moneys in the fund shall be expended upon written
order of the board of directors for the sole purpose of accomplishing
weatherization of buildings owned by the district.
(2)
As used in this section, “weatherization” means the installation of materials,
equipment or fixtures designed primarily to improve the efficiency of space
heating and energy utilization of a building. [1981 c.420 §8]
POWER DEVELOPMENT FEES
543.705 Definitions for ORS 543.710 to
543.730. As used in ORS 543.710 to 543.730, “claimant”
means any person claiming the right to the use of water for power development. [1957
c.333 §1]
543.710 Annual fee based on horsepower;
exemptions; disbursement. Every claimant other than a
licensee under ORS 543.010 to 543.610 shall on or before January 1 of each year
pay to the state in advance an annual fee based upon the theoretical water
horsepower claimed under each separate claim to water, graduated as follows:
Thirty cents for each theoretical water horsepower or fraction thereof up to
and including 50 and 28 cents for each theoretical water horsepower or fraction
thereof in excess of 50. However, upon filing the statement provided in ORS
543.720, the United States or the state, claiming the right to the use of water
to any extent for the generation of power, or any other claimant to the right
to use water for the generation of 10 theoretical water horsepower or less,
shall be exempted from the payment of all fees provided for in this section.
Four cents of each 28 cents collected as an annual fee under this section shall
be deposited to the Water Resources Department Hydroelectric Fund and disbursed
to the Department of Environmental Quality. [Amended by 1957 c.333 §2; 1965
c.185 §1; 1973 c.163 §5; 1997 c.449 §38; 1999 c.873 §24; 2001 c.104 §229]
543.720 Payment of annual fee;
accompanying statement; penalty for nonpayment of fees or nonfiling; lien;
foreclosure; effect of filing excessive claim; computation of horsepower.
(1) The fees provided for in ORS 543.710 shall be paid to the Water Resources
Commission in advance, and shall be accompanied by a written statement showing
the extent of the claim. The statement shall set forth the name and address of
the claimant; the name of the stream from which the water is appropriated or
claimed for power development; a description of the 40 acres, or smallest legal
subdivision in which the point of diversion and point of return are located;
the date of the right as claimed; the maximum amount of water claimed expressed
in cubic feet per second of time; the total average fall utilized under such
claim; the manner of developing power; and the use to which the power is
applied. If the regular flow is supplemented by water stored in a reservoir, the
location of the reservoir, its capacity in acre-feet and the stream from which
it is filled and fed, should be given, also the date of the right as claimed,
for storage purposes.
(2)
If any claimant fails or neglects to file the statement or to pay the fees
within the time specified, the fees due and payable shall be the amount
specified in ORS 543.710 increased 25 percent. The state shall have a
preference lien for the fees due, together with interest at the rate of 10
percent per annum from date of delinquency, upon the property of the claimant
used, or necessary for use, in the development of the right or claim, together
with any improvements erected on the property for such development. Upon notice
from the commission, the Attorney General shall foreclose the lien and collect
the amount due, as provided in this section, in the same manner as other liens
on real property are foreclosed.
(3)
The filing of a claim to water in excess of the amount to which the claimant is
legally entitled shall not operate to vest in the claimant any right to the use
of such excess water, nor shall the payment of the annual license fee provided
for in ORS 543.710 operate to vest in any claimant any right to the use of such
water beyond the amount to which claimant is legally entitled. The filing of
any such claim to water shall be conclusive evidence as to the abandonment by
the claimant of all rights to water for power purposes in excess of the claim
as filed.
(4)
The amount of theoretical water horsepower upon which fees shall be paid under
the provisions of ORS 543.710 and 543.720 shall be computed by multiplying the
maximum amount of water claimed, expressed in cubic feet per second, by the
average total fall utilized, expressed in feet, and dividing the product by 8.8.
[Amended by 1985 c.673 §163]
543.725 [1985
c.674 §9; repealed by 1991 c.869 §15]
543.730 Failure to file statement or pay
fees as evidence of abandonment of claim; cancellation of claim, permit and
water right certificate. (1) Failure of any claimant for
a period of five successive years ending after August 20, 1957, to file the
written statement showing the extent of the claim as required by ORS 543.720,
or failure of any claimant for a period of five successive years ending after
August 20, 1957, to pay the annual license fee as required by ORS 543.710,
shall be conclusive evidence of the abandonment by the claimant of the claim
and of all right to water for power purposes in connection with such claim.
(2)
When a claim is abandoned under the provisions of subsection (1) of this
section, or whenever a claimant has voluntarily authorized, in writing, the
cancellation of a claim or the water right in connection therewith, the Water
Resources Commission shall:
(a)
Cancel the claim on the records of the Water Resources Department.
(b)
Cancel any permit to appropriate water or any water right certificate issued in
connection with such claim. [1957 c.333 §3; 1979 c.67 §7; 1985 c.673 §164]
USE OF EXISTING WATER RIGHT FOR
HYDROELECTRIC PURPOSES
543.760 Definition of water right.
As used in ORS 543.765, “water right” means a water use established by an
adjudication under ORS chapter 539 as evidenced by a court decree or a
certificated ground water or surface water right that is issued for some use
other than for hydroelectric power and that serves as the underlying water
right for an application to use water for hydroelectric purposes. [2007 c.657 §1]
Note:
543.760 and 543.765 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 543 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
543.765 Certificate to use water for
hydroelectric purposes; expedited application process; fees.
(1) Notwithstanding ORS 537.145 and ORS chapter 543, the holder of a water
right may apply to the Water Resources Department for a certificate to use
water for hydroelectric purposes within an artificial delivery system under the
applicant’s existing water right. If the proposed hydroelectric project
qualifies for a Federal Energy Regulatory Commission exemption, the applicant
may use the expedited application process under this section.
(2)
An application, which shall be on a form provided by the department, for a
hydroelectric certificate under this section must include:
(a)
The certificate number, or decree reference if no confirming certificate has
been issued, of the applicant’s existing water right associated with the
proposed hydroelectric project.
(b)
A copy of a Federal Energy Regulatory Commission exemption application, if
applicable.
(c)
A proposed schedule of annual water use and an estimate of the maximum power
generation of the proposed hydroelectric project.
(d)
A statement by the applicant that the amount of water used by the proposed
hydroelectric project will not exceed the amount authorized and used under the
applicant’s existing water right for beneficial use without waste.
(e)
A statement that the applicant owns or otherwise controls the water conveyance
system.
(f)
An application processing fee of $500. The department shall deposit fees
collected under this section into the Water Resources Department Hydroelectric
Fund established pursuant to ORS 536.015.
(g)
A map or drawing and all other data concerning the proposed hydroelectric
project, as may be prescribed by the department. The map or drawing must be of
sufficient quality and scale to establish the location of the existing point of
diversion and the proposed location of the hydroelectric facility.
(h)
If the water to be used for the proposed hydroelectric project is delivered by
a public entity other than the applicant for a certificate under this section,
a statement from that entity that the entity will be able to deliver water as
described in the application.
(i)
Evidence that the water has been used over the past five years according to the
terms and conditions of the applicant’s existing water right described in
paragraph (a) of this subsection.
(3)
If an applicant provides the information required by subsection (2) of this
section:
(a)
The Water Resources Department shall provide notice to both the State
Department of Fish and Wildlife and the public, and provide a 30-day period for
public comment.
(b)
The Water Resources Department may issue a final order and certificate to use
water for hydroelectric purposes upon making a final determination that the
proposed hydroelectric use does not impair, or is not detrimental to, the
public interest in the manner provided in ORS 537.170 (8).
(4)
If the Water Resources Department determines that public interest issues have
been identified, the department shall issue a final order denying the
application. The department shall also issue a final order denying the
application if the department identifies issues related to the public interest.
If the applicant does not appeal the final order as provided in ORS chapter 183
and, within one year of the department’s final order denying the applicant’s
application, files an application with the department for a preliminary permit
to operate a hydroelectric project as provided in ORS 537.130 and 543.210, the
applicant shall receive a credit toward the applicant’s application fees in the
amount of $500.
(5)
At a minimum, a certificate issued under this section must contain the
following conditions:
(a)
Fish screens, by-pass devices and fish passages as required by the State
Department of Fish and Wildlife.
(b)
That use of water be limited to periods when the applicant’s existing water
right is put to beneficial use without waste and that the amount used is not
greater than the quantity of water diverted to satisfy the authorized specific
use under the existing water right described in subsection (2)(a) of this
section.
(c)
That use of water be limited by rate, duty, season and any other limitations of
the applicant’s existing water right described in subsection (2)(a) of this
section.
(d)
That the applicant measure and report the quantity of water diverted.
(e)
Any other conditions the Water Resources Department deems necessary to protect
the public interest.
(f)
That the restrictions established in ORS 543.660 shall apply as conditions of
use to a certificate issued under this section to a district as defined in ORS
543.655.
(g)
That a certificate issued under this section shall be invalidated upon a change
in the point of diversion of the existing water right described in subsection
(2)(a) of this section.
(h)
The Water Resources Department shall conduct a review of certificates issued
under this section and shall issue a final order and a superseding certificate
that corresponds to any changes or adjustments made to the applicant’s existing
water right described in subsection (2)(a) of this section.
(i)
That the right to use water under a certificate issued under this section is
invalidated if the Federal Energy Regulatory Commission exemption related to
the certificate is canceled or invalidated.
(6)
A certificate issued under this section may not have its own priority date. The
department may not regulate for or against any certificate issued under this
section based on the priority date of the certificate.
(7)
A certificate issued under this section does not grant a right to divert water
for hydroelectric purposes.
(8)
A certificate issued under this section may not be included in the
determination of injury to other water rights pursuant to ORS chapter 540.
(9)
A certificate issued under this section is subject to review 50 years after the
date of issuance and pursuant to the terms described in this section.
(10)
Failure to fully develop and put to use a certificate issued under this section
within five years of issuance invalidates the hydroelectric certificate.
(11)
If a certificate under this section is issued, the certificate holder must pay
fees consistent with the fees described in ORS 543.078. Failure to pay a
required fee invalidates a certificate issued under this section.
(12)
The department shall issue invoices for fees required under this section, and
the state shall have a preference lien for delinquent fees, as provided in ORS
543.082.
(13)
An applicant for a certificate issued under this section must provide evidence
of a Federal Energy Regulatory Commission exemption before a certificate can be
issued, if applicable.
(14)
Nothing in this section shall alter the preference of municipalities in ORS
543.260 (3) and 543.270. [2007 c.657 §2]
Note: See
note under 543.760.
543.810
[Repealed by 2001 c.369 §9]
543.820
[Amended by 1985 c.565 §83; 2001 c.104 §230; repealed by 2001 c.369 §9]
543.830
[Repealed by 2001 c.369 §9]
PENALTIES
543.990 Penalties.
(1) Violation of ORS 543.530 (3) is a Class A misdemeanor.
(2)
Violation of any of the provisions of ORS 543.010 to 543.610, or any of the
conditions made a part of any license issued under ORS 543.010 to 543.610, or
any subpoena of the Water Resources Commission or of an administrative law
judge or any person designated by the commission to take testimony, any lawful
order or rule of the commission is a Class B misdemeanor.
(3)
Any person who willfully and knowingly gives false testimony concerning a
material matter in any hearing before the commission, an administrative law
judge or any person designated by the commission to take testimony, or in any
deposition or affidavit to be used in a matter pending before the commission or
administrative law judge, or willfully and knowingly verifies a false statement
or report filed with the commission, commits perjury and may be prosecuted and
punished as otherwise provided by law for the prosecution and punishment of
perjury. [Amended by 1955 c.673 §5; 1985 c.673 §165; 1999 c.849 §117; 2003 c.75
§99; 2011 c.597 §228]
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