Bill Text: OR SB837 | 2013 | Regular Session | Enrolled
Bill Title: Relating to fish protection; and declaring an emergency.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Passed) 2013-07-30 - Effective date, July 25, 2013. [SB837 Detail]
Download: Oregon-2013-SB837-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
Senate Bill 837
Sponsored by Senator JOHNSON
CHAPTER ................
AN ACT
Relating to fish protection; creating new provisions; amending
ORS 543.765; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) There is created a Fish Passage Restoration
Subaccount within the Fish Passage Fund established under ORS
497.139. Fees described in ORS 543.765 (14) shall be paid into
the subaccount. The State Department of Fish and Wildlife may
solicit and accept additional moneys for crediting to the
subaccount, including but not limited to federal funds,
appropriations, donations, grants from nongovernmental entities
and moneys from other public or private sources. Any interest
earned by moneys within the subaccount shall be credited to the
subaccount.
(2) The department shall use the subaccount moneys to fund
priority fish passage restoration projects. The department shall
give priority to the funding of projects on the statewide
inventory of artificial obstructions priority list described in
ORS 509.585, with an emphasis on those statewide priority list
projects that also pay fees under ORS 543.765 (14), and give
priority to projects that have the ability to leverage matching
dollars. The department may not use subaccount moneys to fund
culvert projects or projects that are state-owned structures. The
department may not expend more than six percent of the annual
contributions to the subaccount to pay staffing costs associated
with the advancement of capital projects funded by the
subaccount. + }
SECTION 2. { + (1) The Fish Passage Task Force established
pursuant to ORS 509.590 shall provide advice to the State
Department of Fish and Wildlife regarding the projects to be
funded and the expenditures to be made from the Fish Passage
Restoration Subaccount created under section 1 of this 2013 Act.
(2) The department shall maintain a record of all moneys
deposited to or expended from the subaccount. The department
shall make an annual report of the deposits and expenditures
available to the public on the department's website. + }
SECTION 3. { + (1) The Water Resources Department and the
State Department of Fish and Wildlife shall jointly review the
adequacy of the amount and structure of the annual fee described
in ORS 543.765 (14) in achieving the dual in-conduit energy
development and fish passage restoration objectives of ORS
543.765 and review the functionality of the Fish Passage
Restoration Subaccount and expenditures made from the subaccount.
Enrolled Senate Bill 837 (SB 837-B) Page 1
The departments shall consult with relevant interested parties in
conducting the review.
(2) The departments shall commence the review described in
subsection (1) of this section five years after the effective
date of this 2013 Act. Upon completing the review, the
departments shall report any findings and recommendations
regarding the adequacy of the fee amount and structure or the
functionality of the subaccount or expenditures made from the
subaccount, including any recommendations for legislation, to an
interim committee of the Legislative Assembly dealing with
natural resources no later than October 1, 2018. + }
SECTION 4. ORS 543.765 is amended to read:
543.765. (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 - } { + meets the applicable capacity
limitation under this subsection and meets either the
qualifications + } for a Federal Energy Regulatory Commission
exemption { + from licensing or similar qualifications of
another federal agency responsible for authorizing the
project + }, the applicant may use the expedited application
process under this section { + regardless of which federal
agency issues the authorization. To qualify under this
subsection:
(a) For a project that is to be built as part of an existing
dam, the capacity may not exceed five megawatts. Subsection
(5)(b) of this section does not apply to a project described in
this paragraph.
(b) For in-conduit projects, the capacity may not exceed 15
megawatts for a nonmunicipal facility or 40 megawatts for a
municipal facility. Projects described in this paragraph must
comply with subsection (5)(b) of this section + }.
(2) An application, which shall be on a form provided by the
{ + Water Resources + } 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 { + either + } a Federal Energy Regulatory
Commission exemption application { + or a similar application
submitted to the federal agency responsible for authorizing the
project + }, 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.
Enrolled Senate Bill 837 (SB 837-B) Page 2
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 - } { +
project + }.
(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) { + Except as provided in paragraph (b) of this
subsection, + } fish screens, by-pass devices and fish passages
as required by the State Department of Fish and Wildlife.
{ + (b) If the application is for a hydroelectric project
that is to be installed in or on a conduit delivery system, the
certificate does not need to include a requirement for fish
passage at the diversion point for the conduit delivery system
if:
(A) The hydroelectric generating equipment for the project is
not located on a dam;
(B) The hydroelectric generating equipment for the project is
installed within or at the end of a conduit delivery system;
(C) The conduit delivery system is operated for the
distribution of water for agricultural, municipal or industrial
consumption; and
(D) Except as provided in subsection (15) of this section, the
certificate includes a condition for the making of annual
payments under subsection (14) of this section. + }
{ - (b) - } { + (c) + } 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
Enrolled Senate Bill 837 (SB 837-B) Page 3
authorized specific use under the existing water right described
in subsection (2)(a) of this section.
{ - (c) - } { + (d) + } 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) - } { + (e) + } 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) - } { + (h) + } That the right to use water under a
certificate issued under this section is invalidated if the
{ - Federal Energy Regulatory Commission exemption - } { +
federal exemption or authorization + }related to the certificate
is canceled or invalidated.
{ + (i) Any other conditions the Water Resources Department
deems necessary to protect the public interest.
(6) 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.
(7) Subsection (5)(b) of this section does not affect any
requirement for fish passage applicable to a project that is
otherwise required by law.
(8) Upon request, the State Department of Fish and Wildlife and
the Water Resources Department shall arrange a preapplication
meeting with a person to discuss the requirements associated with
the installation of a hydroelectric project in an artificial
delivery system. + }
{ - (6) - } { + (9) + } A certificate issued under this
section may not have its own priority date. The { + Water
Resources + } Department may not regulate for or against any
certificate issued under this section based on the priority date
of the certificate.
{ - (7) - } { + (10) + } A certificate issued under this
section does not grant a right to divert water for hydroelectric
purposes.
{ - (8) - } { + (11) + } 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) - } { + (12) + } 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) - } { + (13) + } Failure to fully develop and put
to use a certificate issued under this section within five years
of issuance invalidates the hydroelectric certificate.
Enrolled Senate Bill 837 (SB 837-B) Page 4
{ + (14)(a) If a certificate contains a condition described
in subsection (5)(b) of this section for annual payments, the
payment shall be collected as provided in paragraph (c) of this
subsection. Except as provided in paragraph (b) of this
subsection, the annual payment amount must be:
(A) Except as provided in subparagraph (D) of this paragraph,
for the first five years, four times the base hydropower fee
amount assessed for the project under ORS 543.078 for the year.
(B) Except as provided in subparagraph (D) of this paragraph,
for the 6th through 10th years, eight times the base hydropower
fee amount assessed for the project under ORS 543.078 for the
year.
(C) Except as provided in subparagraph (D) of this paragraph,
after the 10th year, 15 times the base hydropower fee amount
assessed for the project under ORS 543.078 for the year.
(D) $100 for any year in which the base hydropower fee amount
assessed for the project under ORS 543.078 is less than $100.
(b) If the certificate is for a hydroelectric project that will
operate on a partial-year basis, the fee shall be three-fifths of
the amount established in paragraph (a) of this subsection.
(c) The Water Resources Department shall collect the fee on
behalf of the State Department of Fish and Wildlife and forward
the fee moneys for crediting to the Fish Passage Restoration
Subaccount created under section 1 of this 2013 Act.
(15)(a) Notwithstanding subsection (14) of this section, a
certificate for a project to install hydroelectric generating
equipment as described in subsection (5)(b) of this section may
provide for the termination of annual payments being made under
subsection (14) of this section if, after the date the project
commences operation:
(A) The project provides for fish passages;
(B) There is an agreement between the applicant and the State
Department of Fish and Wildlife providing for fish passages
associated with the project; or
(C) A waiver or exemption has been issued under ORS 509.585 for
the project.
(b) A certificate for a project to install hydroelectric
generating equipment as described in subsection (5)(b) of this
section does not need to include a condition for the making of
annual payments under subsection (14) of this section if:
(A) There is an agreement between the applicant and the State
Department of Fish and Wildlife providing for the conduit
delivery system to have fish passages associated with the
project; or
(B) A waiver or exemption has been issued under ORS 509.585 for
the project. + }
{ - (11) - } { + (16) + } 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) - } { + (17) + } The { + Water Resources + }
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) - } { + (18) + } An applicant for a certificate
issued under this section must provide evidence of a Federal
Energy Regulatory Commission exemption { + or approval under a
similar process by the federal agency responsible for authorizing
Enrolled Senate Bill 837 (SB 837-B) Page 5
the project + } before a certificate can be issued, if
applicable.
{ - (14) - } { + (19) + } Nothing in this section shall
alter the preference of municipalities in ORS 543.260 (3) and
543.270.
SECTION 5. { + The amendments to ORS 543.765 by section 4 of
this 2013 Act apply to hydroelectric projects for which a
certificate application is filed under ORS 543.765 on or after
the effective date of this 2013 Act. + }
SECTION 6. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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Passed by Senate June 29, 2013
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House July 1, 2013
.............................................................
Tina Kotek, Speaker of House
Enrolled Senate Bill 837 (SB 837-B) Page 6
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 837 (SB 837-B) Page 7
