WaterWatch of Oregon v. Water Resources Dept. ( 2023 )

362
Argued and submitted January 8, 2021, affirmed March 1, 2023
WATERWATCH OF OREGON, INC.,
an Oregon nonprofit corporation,
Petitioner,
v.
WATER RESOURCES DEPARTMENT,
a state agency;
Water Resources Commission,
a state agency;
South Fork Water Board,
an Oregon municipal corporation;
City of Tigard,
an Oregon municipal corporation;
North Clackamas County Water Commission,
an Oregon municipal corporation;
Sunrise Water Authority,
an Oregon municipal corporation; and
City of Lake Oswego,
an Oregon municipal corporation,
Respondents.
Oregon Water Resources Department
S3778, S9982, S22581;
A169652 (Control)
WATERWATCH OF OREGON, INC.,
an Oregon nonprofit corporation,
Petitioner,
v.
WATER RESOURCES DEPARTMENT,
a state agency;
Water Resources Commission,
a state agency;
North Clackamas County Water Commission,
an Oregon municipal corporation;
Sunrise Water Authority,
an Oregon municipal corporation;
City of Tigard,
an Oregon municipal corporation;
City of Lake Oswego,
Cite as 324 Or App 362 (2023) 363
an Oregon municipal corporation; and
South Fork Water Board,
an Oregon municipal corporation,
Respondents.
Oregon Water Resources Department
S46120, S35297, S43170;
A169651
WATERWATCH OF OREGON, INC.,
an Oregon nonprofit corporation,
Petitioner,
v.
WATER RESOURCES DEPARTMENT,
a state agency;
Water Resources Commission,
a state agency;
City of Lake Oswego,
an Oregon municipal corporation;
City of Tigard,
an Oregon municipal corporation;
North Clackamas County Water Commission,
an Oregon municipal corporation;
Sunrise Water Authority,
an Oregon municipal corporation; and
South Fork Water Board,
an Oregon municipal corporation,
Respondents.
Oregon Water Resources Department
S32410, S37839;
A169650
527 P3d 1
Petitioner challenges a final order of the Oregon Water Resources Department
(the department) that grants extensions of time to perfect municipal water right
permits with diversions in the lower 3.1 miles of the Clackamas River. The key
issue is whether the department could determine that the “undeveloped por-
tion[s]” of the permits were conditioned to maintain the persistence of listed fish
species in the lower 3.1 miles of the river, as required by ORS 537.230(3)(d). In a
prior judicial review, the Court of Appeals had determined that the department’s
fish-persistence determination lacked both substantial evidence and substantial
reason and remanded the case to the department. On remand, the department
developed additional evidence and again granted the extensions. In this judicial
review of that final order after the remand, petitioner argues that the depart-
ment’s decision is contrary to ORS 537.230(3)(d), is not supported by substantial
364 WaterWatch of Oregon v. Water Resources Dept.
evidence or reason, and fails to contain concise findings and to apply the law
to the facts. Held: The department’s construction of ORS 537.230(3)(d), which
included consideration of forecasted water use under fully developed permits to
make its fish-persistence determination, is consistent with the legislative policy
expressed in that statute; the department’s order is supported by substantial
evidence and substantial reason; and the department’s statement of facts in the
order is sufficiently concise and the department applied the law to the facts.
Affirmed.
Lisa A. Brown argued the cause and filed the briefs for
petitioner.
Phillip M. Bender argued the cause for respondents City
of Lake Oswego, City of Tigard, North Clackamas County
Water Commission, and Sunrise Water Authority. Also on
the brief were Jeffery W. Ring, Mark P. Strandberg, and
Ring Bender LLP.
Inge D. Wells argued the cause for respondents Oregon
Water Resources Department and Oregon Water Resources
Commission. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Christopher D. Crean argued the cause and filed the
brief for respondent South Fork Water Board. Also on the
brief was Beery, Elsner & Hammond, LLP.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 324 Or App 362 (2023) 365
ORTEGA, P. J.
This water rights case is before us a second time
after our remand to the Oregon Water Resources Department
(OWRD or the department) in WaterWatch of Oregon v.
Water Resources Dept., 268 Or App 187, 342 P3d 712 (2014)
(WaterWatch I). In WaterWatch I, we reviewed three final
orders of the department which granted to the City of Lake
Oswego,1 the North Clackamas County Water Commission,2
and the South Fork Water Board (collectively, the munici-
pal parties) extensions of time to perfect water rights under
their respective water permits for the diversion of water
from the lower reach of the Clackamas River for munici-
pal use (the 2011 orders). The key issue in WaterWatch I
was whether the department could determine, as it had,
that the “undeveloped portion” of the municipal parties’
permits were conditioned “to maintain, in the portions of
waterways affected by water use under the permit, the per-
sistence of fish species listed as sensitive, threatened or
endangered under state or federal law,” as required by ORS
537.230(3)(d).3 We reversed and remanded the 2011 orders,
concluding that the department’s fish-persistence determi-
nation lacked both substantial evidence and substantial
reason.
On remand, the department reopened the hear-
ing, took additional evidence, and issued a final order after
remand (the 2018 order) which supplemented the 2011
orders. The department again determined that the permits
as conditioned will maintain the persistence of the listed
fish species and placed conditions on the permits that are
substantially similar to the conditions placed on the per-
mits in the 2011 orders. WaterWatch seeks judicial review
of the 2018 order, arguing that the decision is contrary to
1
Respondent the City of Tigard is not a holder of one of the water permits
at issue. However, Tigard was granted party status because it has an interest in
Lake Oswego’s permits through an intergovernmental agreement.
2
Respondent Sunrise Water Authority is a co-permittee with North Clackamas
County Water Commission on one permit.
3
At the time of the first appeal and the hearing on remand, the statutory
subsection at issue appeared in ORS 537.230(2)(c), which the legislature renum-
bered to ORS 537.230(3)(d) in 2017. Or Laws 2017, ch 704, § 1. Because the text of
the provision was not amended, we use the current numbering.
366 WaterWatch of Oregon v. Water Resources Dept.
ORS 537.230(3)(d), is not supported by substantial evidence
or reason, and violates ORS 183.470(2), by failing to contain
concise findings and to apply the law to the facts.
We conclude that the department did not err in
its construction and application of ORS 537.230(3)(d).
WaterWatch’s arguments raise the issue of whether the
department could, under the terms of the statute, consider
forecasted actual water use of the municipalities at full
permit development as a type of “existing data” on which
to base its fish-persistence determination. In addressing
that issue, we conclude that the department’s construc-
tion of the statute, which includes considering forecasted
water use, is consistent with the legislative policy of ORS
537.230(3)(d). We also conclude that the 2018 order is sup-
ported by substantial evidence and substantial reason, and
that it does not violate ORS 183.470(2). Accordingly, we
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In WaterWatch I, we provided a succinct overview of
the issue in this case from which we will proceed:
“The municipal parties are holders of eight separate
water-right permits for municipal use that have points of
diversion in the lower 3.1 miles of the Clackamas River
(affected reach or lower reach). The holder of a permit for
municipal water use must complete construction of any
works within 20 years of obtaining the permit and put the
water right to complete use within the time frame specified
in the permit. ORS 537.230[(3)]. A municipal water holder
can obtain an extension of time of those deadlines if the
department finds that three statutory conditions have been
satisfied. Id. At issue in these cases is the department’s
application of the third statutory condition in granting the
municipal parties’ requested extensions.
“That condition required the department to find that
the ‘undeveloped portion’ of the municipal parties’ permits
are ‘conditioned to maintain, in the portions of waterways
affected by water use under the permit, the persistence of
fish species listed as sensitive, threatened or endangered
under state or federal law.’ ORS 537.230[(3)(d)]. The stat-
ute requires the department to ‘base its finding on existing
Cite as 324 Or App 362 (2023) 367
data and upon the advice of the State Department of Fish
and Wildlife.’ Id.”
WaterWatch I, 268 Or App at 191-92 (footnotes omitted).
As required by statute, the department sought
the advice of the Oregon Department of Fish and Wildlife
(ODFW), and ODFW identified “target streamflows for fish
persistence for each season (persistence flows) and advised
the department to condition the undeveloped portion of each
of the permits to ‘maintain persistence of listed fish species
consistent with the recommended flows.’ ” Id. at 196. From
April to June, ODFW advised that missing persistence flows
would be “ ‘an extremely rare event’ ” and measures taken
to address such an event “ ‘should be reflective of how much
recommended flows are being missed by and the percentage
of water that is withdrawn by the municipality compared
to the overall streamflow level.’ ” Id. From July to August,
ODFW advised that, on occasion, persistence flows would
not be met and that the permit holders should develop a plan
to “ ‘provide for a contingency to reduce [their] water use or
augment stream flows using releases from Timothy Lake.’ ”
Id. (emphasis and boldface in original). From September
to November, ODFW advised that, for missed persistence
flows, the permit holders should develop a plan “ ‘to augment
stream flows and reduce [their] water use to minimize its
impact.” Id. at 197 (emphasis and boldface in original). From
December to March, ODFW advised that it did not antici-
pate flow-related issues. Id.After receipt of that advice, the department granted
the municipal parties’ requested extensions. It found that
“the use of the undeveloped portions of the permits would
not maintain the persistence of listed fish species in the
affected reach and thus imposed conditions on the permits
to maintain fish persistence.” Id. Those conditions included
a statement of ODFW’s recommended persistence flows for
each season, an annual meeting condition for devising a
strategy to use releases from Timothy Lake, and a curtail-
ment condition to address missed persistence flows occur-
ring after the first Monday in September through June 30.
Id. at 198-99. ODFW concurred that the conditions were
consistent with its advice to the department. Id. at 199.
368 WaterWatch of Oregon v. Water Resources Dept.
Both WaterWatch and South Fork protested and
requested a contested case hearing. An administrative
law judge (ALJ) held a hearing and issued three proposed
orders—one for Lake Oswego’s permits, one for North
Clackamas’s permits, and one for South Fork’s permits—
that affirmed the department’s conclusions and recommen-
dations with respect to fish persistence. All parties filed
exceptions to the ALJ’s orders, including the department.
The department ultimately issued final orders (the 2011
final orders) that modified the ALJ’s legal analysis, included
additional findings related to fish persistence, and adopted
the three permit conditions. WaterWatch sought judicial
review.
In WaterWatch I, we construed the fish-persistence
requirement in ORS 537.230(3)(d) and rejected WaterWatch’s
contention that the department had applied a legally incor-
rect interpretation. We address that statutory interpreta-
tion in more detail below. We then turned to WaterWatch’s
argument that the department’s decision was not supported
by substantial evidence or reason. We rejected WaterWatch’s
arguments with respect to specific findings of fact, except
for one. That finding stated, “The short-term drops below
minimum streamflows predicted by [WaterWatch’s expert]
Jonathan Rhodes are not incompatible with maintaining
the persistence of listed fish species.” Id. at 215. We con-
cluded that that finding was not supported by substantial
evidence because nothing in the evidence expressed what
constituted a short-term versus a long-term drop below per-
sistence flows with respect to fish persistence “or why the
flows predicted by Rhodes, which are not identified in the
order, fall within that category.” Id. at 218.
We further concluded that the department’s ulti-
mate determination—that the permits as conditioned will
maintain the persistence of listed fish—lacked substan-
tial reason. Id. We explained that the permit conditions
did not ensure that diversions of the undeveloped portions
of the permit would not contribute to missing the per-
sistence flows. The department’s findings, however, included
that the permits, without conditions, would not main-
tain fish persistence and that, although not meeting the
Cite as 324 Or App 362 (2023) 369
persistence flows on a short-term basis was not necessary
for fish persistence, it was necessary for fish persistence to
meet those flows on a long-term basis. We explained, “The
department failed to connect the dots between its finding
of what is necessary to maintain fish persistence—long-
term meeting of persistence flows—with how the condi-
tions ensure that the diversion of the undeveloped por-
tions of the municipal parties’ permits do not contribute
to the long-term failure to meet persistence flows.” Id. at
223.
On remand, at the department’s request, ODFW
reviewed WaterWatch I and responded with additional
explanation on which its advice was based. We spend some
time describing the contents of ODFW’s response because
it forms the basis for the department’s findings in the 2018
order.
ODFW first explained its general considerations for
fish persistence, fish habitat, and the affected reach in the
Clackamas River. ODFW explained that it looks at fish per-
sistence on a population basis across the entire watershed,
which means that it considers the water withdrawals in the
affected reach in relation to the importance of the affected
reach to the fish population at the different times of year
and with respect to whether streamflow is a limiting factor
for the fish in the affected reach. As to fish habitat, ODFW
explained that there are three life stages to consider—
migration, rearing, and spawning—which require different
habitats at different times of the year depending on the fish
species. As to the affected reach, ODFW explained that the
reach provides a migration corridor for all four fish species
at issue, provides about two to five percent of the basin-wide
spawning habitat for fall Chinook, provides about one to two
percent of rearing habitat in the basin for spring Chinook
and winter Steelhead, and provides about 7.8 percent of
rearing habitat for fall Chinook, but many or most juvenile
fall Chinook likely migrate downstream out of the affected
reach before August.
ODFW then explained that it compared current
river conditions with future conditions. The future con-
ditions were based on a water model prepared by Dr. Rob
370 WaterWatch of Oregon v. Water Resources Dept.
Annear, an expert for the municipal parties. That model,
which is called the Annual Scaled Scenario or Annual
Scaled Model by the parties, provided a “high-end” estimate
of future water use. Using data taken from 2000 to 2014, the
Annual Scaled Scenario took the maximum recorded daily
diversion for each year and scaled it up to the total with-
drawal allowed under the permit and then scaled up the
other days using a ratio based on the diversion for that date.
ODFW explained:
“For example, Lake Oswego has total rights of 59 cfs, of
which 25 cfs are Developed and 34 cfs Undeveloped (Table 2).
If its maximum recorded daily diversion for a given year
was 20 cfs, the Annual Scaled diversion for this day is set
at 59 cfs, and diversions for all other days are scaled up
using the ratio 59/20. A recorded diversion of 15 cfs would
be scaled up to 15 x (59/20) = 44.2 cfs (Figure 1).”
As such, ODFW stated, the Annual Scaled Scenario mimics
the historical pattern of daily water use from 2000 to 2014
and provides an “estimate of the likely effects of full use of
the cities’ water rights in the future and is based on existing
data.” ODFW compared the Annual Scaled Scenario with
the persistence flows for the affected reach and “determined
the percentage of time the [persistence] flows will be missed,
and the magnitude and duration of the shortfall.” That com-
parison allowed “ODFW to make a determination whether
municipal use of the undeveloped portion of the permits will
likely result in short-term or long-term drops below [per-
sistence] flows.”
ODFW then defined what it meant by short-term
or long-term drops below the persistence flows and the pre-
dicted future effect of water withdrawals under the permits.
ODFW stated:
“ODFW’s target flows are not flows that must be con-
stantly met in order to maintain the persistence of the
affected species. Rather, they are flows necessary over the
long term to maintain persistence. The target flows are
based on the understanding that stream flows naturally
exhibit variation both within a given year and from year
to year, and that the affected fish species have adapted to
these variations. A short-term drop below target flows is a
Cite as 324 Or App 362 (2023) 371
drop that allows the population of the affected species to
remain fairly stable over time. A long-term drop below tar-
get flows is a drop that results in either a new normal at a
lower population level or a continued decline in population
level.
“Whether a given drop or set of drops below target flows
constitutes a short-term or a long-term drop has to do
with the frequency and magnitude of the drop, when the
drop occurs and the spatial extent and characteristics of
the reach where the drop occurs. All of these factors deter-
mine the response of the population to drops below target
flows.
“Under the Annual Scaled model water use scenario,
the drops below target flows happen only part of the time
within a given year, do not happen every year, are usually
not a large magnitude (see following section and Table 4),
and occur over a small percentage of basin habitat (Table 1).
For these reasons, ODFW did not consider the projected
drops below target flows resulting from municipal use of
the undeveloped portions of the permits to be ‘long-term’ in
regard to the impact on any populations in the basin.
“However, while the Annual Scaled model scenario
represents a likely maximum use scenario (and therefore
likely overestimates actual use under the fully developed
permits), ODFW also considered that the municipalities
will have the legal right to use the full quantity of water
allowed under the permits if the permits are fully devel-
oped. While such a scenario is unlikely for the reasons
described above, ODFW accounted for it in its advice by
recommending a curtailment condition during certain
parts of the year. In ODFW’s view, the curtailment condi-
tion is necessary in a ‘full permitted use’ scenario to avoid
long-term drops below persistence flows.”
ODFW then provided further explanation why the predicted
streamflow drops below persistence flows constitute a short-
term drop that remains compatible with fish persistence,
given all the general considerations.
Finally, ODFW explained that the three recom-
mended permit conditions would help maintain the per-
sistence of the listed fish species. ODFW first addressed
its recommended curtailment condition, which would apply
372 WaterWatch of Oregon v. Water Resources Dept.
from the day after the first Monday in September through
June 30. That condition would limit the maximum total
amount of the undeveloped portion of the permit that could
be legally diverted in proportion to the amount by which
persistence flows are missed. As a second condition, ODFW
recommended that, for the period from July 1 to the first
Monday in September, when the curtailment condition did
not apply, the municipalities should be required to enact
water conservation measures or curtailment (as provided in
the municipalities’ required plans) on the first occurrence
of a missed flow to reduce the magnitude of the missed
persistence flow. As a third condition, ODFW again recom-
mended a meeting condition for the municipal parties to
meet with ODFW to develop annual strategies for Timothy
Lake releases. ODFW stated that, while not necessary for
fish persistence, if lake releases are shaped and timed cor-
rectly, they could contribute to the health of the fish spe-
cies. In the converse, if timed and shaped incorrectly, such
releases could harm the health of the fish species. ODFW
explained that augmented flows are not most helpful in
the summer months, but if curtailment applied in those
months, the municipalities would be incentivized to call for
augmented flows in those months, and not call for the aug-
mented flows during the times it would be beneficial for fish
species.
In addition to seeking ODFW’s updated advice, the
department determined that it needed additional evidence
and referred the case for a further hearing before an ALJ.
Ultimately, the department identified the following ques-
tions as the scope of issues on remand:
“1. Whether the ODFW distinction between a ‘short-
term drop’ and a ‘long-term drop’ below the target flows is
supported by a preponderance of the evidence.
“2. Whether [the department] can ‘connect the dots’ to
show that the drops below the target flows will continue to
maintain the persistence of the listed fish species.
“3. Whether Dr. Annear’s Annual Scaled water sce-
nario is valid and was appropriately relied upon by ODFW
and [the department].
Cite as 324 Or App 362 (2023) 373
“4. Whether the changes in the annual meeting condi-
tion are supported by a preponderance of the evidence.”4
The ALJ took additional documentary evidence
and testimony at the remand hearing and issued a proposed
order to which all parties, including the department, filed
exceptions. The department ultimately issued its final order
on remand (the 2018 order) which adopted the ALJ’s pro-
posed order with only minor modifications in the findings,
but rejected a modification of permit conditions proposed
by the ALJ. The 2018 order incorporated the 2011 orders
at issue in WaterWatch I and stated that the 2018 order “is
intended to supplement and clarify the 201[1] final orders in
a manner that addresses the bases for the Court of Appeals’
remand. To the extent there is a direct conflict between the
201[1] final orders and this Final Order on Remand, this
Final Order on Remand controls.”
In the 2018 order, the department found that
ODFW’s response was supported by a preponderance of evi-
dence in the record and adopted as its own findings each
section of that response. The department additionally found
that “ODFW concluded that water use under the Annual
Scaled model water use scenario would not result in long-
term drops” for the reasons set out in ODFW’s response,
which reasons the department found “are supported by a
preponderance of evidence in the record and are adopted as
findings of fact.” The department further found that “ODFW
considered both the results of the Annual Scaled model sce-
nario and the possibility that municipalities could legally
use the entirety of the permitted amounts.” (Emphasis in
original.)
The department then recited additional evidence
from the hearing record that supported its adoption of
ODFW’s response as its own findings and also made addi-
tional findings about other evidence in the record, includ-
ing with respect to WaterWatch’s experts. With respect to
the Annual Scaled Scenario, the department set out how
4
The department also identified a fifth issue to address the affect, if any,
of WaterWatch of Oregon v. Water Resources Dept., 259 Or App 717, 316 P3d 330
(2013) (Cottage Grove), on one of the permits. That issue is not before us on judi-
cial review.
374 WaterWatch of Oregon v. Water Resources Dept.
Annear created the scenario, stating that he used water
use data from 2000 to 2014 taken from gauge data and
records of actual withdrawals at the points of diversion and
then scaling up that use “as a projection for future years
when the full permitted amounts would be available.” The
department found that Annear, “used this scale rather than
applying the full permitted amount on a continuous basis
because he was unaware of any municipality that has ever
used its full permitted amount of water around the clock,
seven days per week, and he believed that level of use would
be unrealistic.” The department also found that the Annual
Scaled Scenario “is calibrated for flow, water level, and tem-
perature” and that Annear “modeled temperatures that cor-
related well with the actual river temperatures,” disputing
WaterWatch’s experts’ “hypothesis that withdrawals from
the river always caused water temperatures to rise.” The
department also found that Annear considered the estimate
of future water use to be conservative, because the scenario
did not include that South Fork will not be able to divert
some of its water during low flow periods and per capita
water use has been declining yearly for about 10 years.
With regard to fish persistence, as an additional
finding to those adopted from ODFW’s response, the depart-
ment found that “[t]here is some fish use of the affected
reach of the river probably at all times of year, but fish use
at the low flow times is minimal.”
With respect to WaterWatch’s experts, the depart-
ment found that two experts, John Davies and Jonathan
Rhodes, based their opinions on an assumption that the
municipal parties would continuously use all the water
available under the permits, and a third, Dr. Christopher
Frissell, concluded that any additional water withdrawal
would cause declines in the listed fish populations.
The 2018 order also includes an “opinion” section
discussing the evidence, WaterWatch’s arguments, and the
connection between the department’s findings and conclu-
sions. In that opinion, the department pointed to the evi-
dence and its explanation of the difference between short-
term and long-term drops, as well as the evidence of the
listed fish species timing and type of use of the reach. The
Cite as 324 Or App 362 (2023) 375
department then rejected Rhodes’ opinion because “his
computations [are based] on the assumption that all of the
municipalities will use all of their permitted water rights, all
of the time, the 24/7 assumption.” The department rejected
that assumption as not supported by evidence in the record,
noting that “even Rhodes admitted at [the] hearing that he
had no opinion about whether any municipality had ever
used the full amount of permitted water all of the time.”
The department also addressed our conclusion in
WaterWatch I that the 2011 orders lacked substantial reason,
stating that ODFW “explained the connection between the
fish use of the affected reach and the streamflow changes
that will come with additional withdrawals.” With regard
to the permit conditions, the department concluded that
the curtailment condition that applied between the first
Monday in September through June and the condition for
releases from Timothy Lake were supported by a prepon-
derance of the evidence. The 2018 order states that the cur-
tailment condition was only important for fish persistence if
permit holders “were using close to their maximum permit-
ted amounts almost all of the time.” The department added
in the 2018 order that that was “a water-use scenario which
* * * is not supported by a preponderance of the evidence.”
As to the summer months, the ALJ had suggested
a change to the condition, which the department rejected.
The ALJ recommended that, because of the uncertainty of
the effects of climate change, the summer months should
include a curtailment provision. The department rejected
the ALJ’s proposed condition because it was not supported
by a preponderance of evidence. The department pointed out
that the ALJ found that the summer condition that required
the municipal parties to enact the first stage of their con-
servation plans when the persistence flow is missed, with-
out modification, was sufficient under the evidence, but only
recommended the change because the department “does not
know what the future holds.” The department explained that
that is not a sufficient basis on which to impose conditions.
The department also responded that the curtailment condi-
tion (which applies from September to June) is connected to
the persistence of listed fish “in a limited fashion” because it
376 WaterWatch of Oregon v. Water Resources Dept.
is only “relevant to fish persistence in the unlikely event of
continual use of the full quantity of water allowed under the
permits once the permits are fully developed.”
As to the specific remand questions, the department
concluded that ODFW’s distinction between a short-term
and long-term drop below persistence flows was supported
by a preponderance of the evidence, that it had “connected
the dots” that the drops below persistence flows “will con-
tinue to maintain the persistence of the listed fish species,”
that ODFW and the department appropriately relied on
the Annual Scaled Scenario, and that the changes in the
meeting condition were supported by a preponderance of the
evidence. The department then imposed the three permit
conditions recommended by ODFW on each of the municipal
parties’ permits. WaterWatch now seeks judicial review of
the 2018 order, raising several arguments.
II. CONSTRUCTION OF ORS 537.230(3)(d)
WaterWatch’s challenges on judicial review largely
rise and fall on the department’s reliance on the Annual
Scaled Scenario in making its fish-persistence determina-
tion under ORS 537.230(3)(d). WaterWatch argues both that
the department legally erred in that reliance based on the
statutory requirement and, even if it was not legal error,
that the department’s reliance was not based in substantial
evidence or reason. We first address the question of what the
statute requires.
ORS 537.230(3)(d) provides:
“(3) * * * However, the department may order and allow
an extension of time to complete construction or to perfect
a water right beyond the time specified in the permit under
the following conditions:
“* * * * *
“(d) For the first extension issued after June 29, 2005,
for a permit for municipal use issued before November 2,
1998, the department finds that the undeveloped portion
of the permit is conditioned to maintain, in the portions
of waterways affected by water use under the permit, the
persistence of fish species listed as sensitive, threatened
or endangered under state or federal law. The department
Cite as 324 Or App 362 (2023) 377
shall base its finding on existing data and upon the advice
of the State Department of Fish and Wildlife. An existing
fish protection agreement between the permit holder and
a state or federal agency that includes conditions to main-
tain the persistence of any listed fish species in the affected
portion of the waterway is conclusive for purposes of the
finding.”
The department has interpreted ORS 537.230(3)(d)
in its rules and through its application of the statute in this
case.5 Under OAR 690-315-0080, the department has set out
how it will evaluate the fish-persistence requirement in ORS
537.230(3)(d). That rule provides that the department must
find that “use of the undeveloped portion of the permit will
maintain the persistence of the listed fish species” or if it
will not, that “the undeveloped portion of the permit is con-
ditioned to maintain the persistence of listed fish species.”
OAR 690-315-0080(1)(f)(B), (C). The rule also provides that
the department’s finding “shall be limited to impacts related
to streamflow as a result of use of the undeveloped portion
of the permit and further limited to where, as a result of use
of the undeveloped portion of the permit, ODFW indicates
that streamflow would be a limiting factor for the subject
listed fish species.” OAR 690-315-0080(2). The department
has defined “[u]se of the undeveloped portion of the permit”
to mean “the diversion of the undeveloped portion of a sur-
face water permit.” OAR 690-315-0010(6)(e).
In the 2018 order, the department followed its rules,
and determined that the existing data showed that, once
the permits were fully developed, the municipal parties’ use
of the undeveloped portion of the permits was unlikely to
exceed the forecast in the Annual Scaled Scenario and thus
it was the proper basis from which to initially determine if
use of the undeveloped portion of the permits would affect
fish persistence. The department further determined that
the use predicted under the Annual Scaled Scenario would
maintain the persistence of the listed fish species. But, in
5
On judicial review, South Fork responds to WaterWatch with an interpre-
tation of ORS 537.230(3)(d) that the other municipal parties and the department
have joined. However, South Fork’s proffered interpretation does not precisely
track that of the department, as provided in its rules and the 2018 order. Thus,
we do not separately address South Fork’s argument.
378 WaterWatch of Oregon v. Water Resources Dept.
the event that the municipal parties’ use exceeded that
under the Annual Scaled Scenario, the department deter-
mined that the permit conditions placed on the extensions
would maintain the persistence of the listed fish species.
The thrust of WaterWatch’s argument in its first
assignment of error is that the department did not make a
fish-persistence determination based on permit conditions,
as required by ORS 537.230(3)(d), but instead based its
determination on the projected use under the Annual Scaled
Scenario, a projected use that the municipal parties are not
required to follow and was not made a permit condition. The
problem, WaterWatch argues, is that the statute requires
the department to condition the undeveloped portion of the
permit to maintain fish persistence and that the statutory
requirement cannot be avoided by instead claiming that the
municipal parties will not use the entire undeveloped por-
tion of the permits. WaterWatch asserts that the department
was required to determine fish persistence based on the full
amount of water the municipal parties are legally allowed
to use under the permits. WaterWatch focuses solely on the
phrase “the undeveloped portion of the permit is conditioned
to maintain * * * the persistence of [listed] fish species” and
asserts that the department failed to apply that phrase on
remand as directed in WaterWatch I.
In WaterWatch I, we construed the phrase “is con-
ditioned to maintain * * * the persistence of [listed] fish
species.” We determined that that phrase was an “inexact
term” because it “is a phrase that expresses a complete leg-
islative policy to ensure that further development of munic-
ipal permits will maintain fish persistence,” but was not so
precise that the terms did not require interpretation by the
department. WaterWatch I, 268 Or App at 205; see also id.(“ ‘Although [inexact terms] embody a complete expression
of legislative meaning, that meaning always may not be
obvious. As to “inexact terms, the task of the agency, and
ultimately of the court, is to determine what the legislature
intended by using those words.” ’ ” (Quoting Coast Security
Mortgage Corp. v. Real Estate Agency, 331 Or 348, 353-54,
15 P3d 29 (2000) (internal citations omitted).). Then, con-
sidering the text in context, and in light of the relevant
Cite as 324 Or App 362 (2023) 379
legislative history, we concluded that, in using that phrase,
“the legislature intended that the undeveloped portions of
the permits be subject to conditions—that is, fulfillment of
the conditions is a prerequisite to diversion of the undevel-
oped portions—that preserve from decline the continued
existence, or endurance of listed fish species.” Id. at 207. We
further explained that the legislature “focused on the long-
term preservation or endurance of fish population health in
the affected waterway.” Id. at 210. We rejected WaterWatch’s
arguments that the department applied a legally incorrect
interpretation of the statute in its 2011 final orders. We
explained:
“The legislative policy of the statute focuses on long-term
fish population health in the affected waterway. It does
not express a policy that no habitat may be impaired or
that no individual fish may be allowed to perish or leave.
The department’s interpretation of the statute contained
in its final orders—that the department is required to con-
dition the permits to maintain long-term population health
of listed fish species—is consistent with the legislature’s
policy.”
Id. at 211. Thus, our remand to the department was not
based on any misunderstanding by the department of the
legal standard in ORS 537.230(3)(d) that it was required to
apply.
Based on that prior construction, WaterWatch is
correct that the statute requires the undeveloped portion
of the permit to be conditioned—a prerequisite that must
be met to divert the undeveloped portion of the permit—
to maintain fish persistence and that the focus must be on
long-term fish population health in the affected waterway.
However, that prior construction, and that phrase in the stat-
ute, does not address the details of how the department (or
ODFW) is to determine whether conditions (or what kind of
conditions) are needed for long-term fish population health.
See WaterWatch I, 268 Or App at 205 (what makes the dis-
puted phrase inexact is that “the agency must use judgment
to determine what conditions it will need to impose on indi-
vidual applications for extensions of time to effect [the legis-
lature’s] complete policy statement”).
380 WaterWatch of Oregon v. Water Resources Dept.
The statute provides additional guidance on that
topic: “The department shall base its finding on exist-
ing data and upon the advice of [ODFW].” As we noted in
WaterWatch I, the department must use judgment to arrive
at its finding that the undeveloped portion of the permit is
conditioned on fish persistence. We note now that the fac-
tual bases for that judgment must be existing data and
the advice of ODFW. Given that context, we understand
WaterWatch to argue that the department’s exercise of judg-
ment in this case was inconsistent with the statute because
the only “existing data” the department can permissibly
consider with respect to streamflow is reflected in a simple
equation: current, or perhaps projected future, streamflow
(absent the diversion of the undeveloped portion of the per-
mit) minus the full amount of the undeveloped portion of the
permit. Because the Annual Scaled Scenario is not part of
that equation, they contend, the department’s reliance on it
is inconsistent with the department’s task as set out in the
statute.
As explained below, we disagree. In OAR 690-315-
0080, the department set forth the methodology for address-
ing its task under ORS 537.230(3)(d), which provides, as
relevant:
“(1) In order to approve an application for an extension
of time for municipal and quasi-municipal water use per-
mits holders to complete construction and/or apply water to
full beneficial use pursuant to ORS 537.230 or 537.630, the
Department shall find:
“* * * * *
“(f) For the first extension issued after June 29, 2005
for municipal water use permits issued before November 2,
1998:
“* * * * *
“(B) It is determined that use of the undeveloped por-
tion of the permit will maintain the persistence of listed
fish species in the portions of waterways affected by water
use under the permit; or
“(C) If it is determined that use of the undeveloped
portion of the permit would not maintain the persistence of
Cite as 324 Or App 362 (2023) 381
listed fish species in the portions of the waterways affected
by water use under the permit, the undeveloped portion of
the permit is conditioned to maintain the persistence of
listed fish species in the portions of the waterways affected
by water use under the permit.
“(2) The Department’s finding for municipal use per-
mits under subsection (1)(f) of this rule shall be based on
existing data and advice of the Oregon Department of Fish
and Wildlife (ODFW). The Department’s finding shall be
limited to impacts related to streamflow as a result of use
of the undeveloped portion of the permit and further lim-
ited to where, as a result of use of the undeveloped portion
of the permit, ODFW indicates that streamflow would be a
limiting factor for the subject listed fish species.
“* * * * *
“(g) The Department may place fishery resource pro-
tection conditions on the undeveloped portion of the permit
in the extension proposed and final order under [OAR] 690-
315-0050 if the Department finds that, without such condi-
tions, use of the undeveloped portion of the permit will not
maintain, in the portions of waterway affected by water
use under the permit, the persistence of listed fish species.”
The department further defined “[u]se of the undeveloped
portion of the permit” to mean “the diversion of the unde-
veloped portion of a surface water permit” and “[p]ortions of
waterways affected by water use under the permit” to mean
“those portions of the drainage basin at or below the point
of diversion for a surface water permit.” OAR 690-315-0010
(6)(e), (f).
Under that rule, the department broke down its
task to first determine whether diversion of the undevel-
oped portion of the permit would or would not maintain the
persistence of the listed fish. And in making that determi-
nation, the department further defined what “existing data”
and “advice” would be considered by providing that its find-
ing “shall be limited to impacts related to streamflow as a
result of use of the undeveloped portion of the permit and
further limited to where, as a result of use of the undevel-
oped portion of the permit, ODFW indicates that streamflow
would be a limiting factor for the subject listed fish species.”
382 WaterWatch of Oregon v. Water Resources Dept.
In the 2018 order, the department clarified its appli-
cation of the rule, by explaining that diversion of the unde-
veloped portion of the permit was the amount of water the
municipalities would use at full permit development, as sup-
ported by a preponderance of evidence in the record. Here,
that was the Annual Scaled Scenario which was based on 15
years of existing data of historical use scaled up to full per-
mit development, a method that captures natural seasonal
variation. The department then used the Annual Scaled
Scenario to determine the “impacts related to streamflow as
a result of the use of the undeveloped portion of the permit.”
OAR 690-315-0080(2).
We are not persuaded that there is anything in the
department’s rule or orders that is contrary to the expressed
legislative policy in ORS 537.230(3)(d). In two prior cases, we
have discussed the legislative policy in that statute. First,
we have concluded that the statute reflects a legislative pol-
icy “to allow municipal users additional time—beyond that
specified in the permit or a previous extension—to perfect
their water right, while at the same time ensuring the pro-
tection of public resources and meaningful public partici-
pation in extension proceedings.” WaterWatch of Oregon,
Inc. v. Water Resources Dept., 259 Or App 717, 741, 316 P3d
330 (2013) (Cottage Grove). Additionally, as discussed in
WaterWatch I, the primary phrase “maintain * * * the per-
sistence of [listed] fish species,” “is a phrase that expresses
a complete legislative policy to ensure that further develop-
ment of municipal permits will maintain fish persistence.”
WaterWatch I, 268 Or App at 205. Further, the legislature
required that the department base its fish-persistence find-
ing on existing data and the advice of ODFW. The depart-
ment’s construction and application of the statute, as dis-
cussed above, is not contrary to those legislative policies.
WaterWatch’s attempt to find in the statute a restric-
tion of data on streamflow to a simple subtraction problem—
current or projected streamflow minus the full amount of
water that could ever be used as a result of the development
of the permit—is unfounded. The statute does not direct the
department to subtract the entire amount of water that rep-
resents the undeveloped portion of the permit from the river
Cite as 324 Or App 362 (2023) 383
and make its determination from there. Rather, the statute
directs the department to base its determination on exist-
ing data and the advice of ODFW. That is a policy direc-
tive to use data currently in existence to determine what is
needed to prevent a future potential harm. It is not contrary
to that legislative policy for the department to use existing
data on water use patterns to determine what future use
will likely be once permits are fully developed so that it can
make a reality-based decision on what is needed to main-
tain fish persistence. The department’s construction and
application of the statute in its OAR and orders in this case
are not inconsistent with the statute. We therefore reject
WaterWatch’s first assignment of error.
III. SUBSTANTIAL EVIDENCE AND
SUBSTANTIAL REASON
In its second, third, and fifth assignments of error,
WaterWatch asserts, for a number of reasons, that the
2018 order is not based on substantial evidence or reason.
Instead of addressing each of those reasons in the scatter-
shot manner in which they are presented by WaterWatch,
we focus our analysis on those areas that the department
was required to address on remand from WaterWatch I. As
explained below, we conclude that the 2018 order, and, in
particular the department’s fish-persistence determination,
is supported by substantial evidence and reason.
A. Standard of Review
We first turn to our standard of review. “Under
ORS 183.482(8)(c), we are required to set aside or remand
the department’s final orders if they are not supported by
substantial evidence.” WaterWatch I, 268 Or App at 212;
ORS 536.075(2), (3) (judicial review of a contested case
order issued by the department is to be conducted according
to ORS 183.482); see also ORS 536.075(9) (“The [Court of
Appeals] may remand the case for further evidence taking,
correction or other necessary action. The court may affirm,
reverse, modify or supplement the order appealed from, and
make such disposition of the case as the court determines
to be appropriate.”). “Substantial evidence exists to sup-
port a finding of fact when the record, viewed as a whole,
384 WaterWatch of Oregon v. Water Resources Dept.
would permit a reasonable person to make that finding.”
ORS 183.482(8)(c). Our review for substantial evidence “does
not entail or permit the reviewing tribunal to reweigh or
to assess the credibility of the evidence that was presented
to the factfinding body.” Tigard Sand and Gravel, Inc. v.
Clackamas County, 151 Or App 16, 20, 949 P2d 1225 (1997),
rev den, 327 Or 83 (1998). As part of our substantial evi-
dence review, “we [also] look at whether the findings provide
‘substantial reason’ to support the legal conclusion reached
by the agency.” Warkentin v. Employment Dept., 245 Or App
128, 134, 261 P3d 72 (2011).
B. Short-Term Versus Long-Terms Drops in Persistence Flows
In WaterWatch I, we identified as a significant fail-
ing in the 2011 orders that the department did not provide
evidence or explain the difference between a short-term drop
versus a long-term drop in persistence flows with respect to
fish persistence. That failure was the basis for our conclu-
sion that the single finding—“[t]he short-term drops below
minimum streamflows predicted by Jonathan Rhodes are
not incompatible with maintaining the persistence of listed
fish species”—was not supported by substantial evidence.
WaterWatch I, 268 Or App at 218. That failure was also a
basis for our conclusion that the department’s ultimate fish-
persistence determination lacked substantial reason. Id. at
223. We explained that “the department [had] in its [2011]
final order glosse[d] over the dispute about when missing
the persistence-flow minimums adversely affects the per-
sistence of the listed fish populations. Is it strictly a dura-
tional flow issue or is it related to severity as well? Is miss-
ing persistence flows from July through early October in
perpetuity a short-term or long-term drop?” Id. at 222.
In one of the subparts to its second assignment of
error, WaterWatch asserts that the department failed to
properly address that remand issue. WaterWatch argues
that the definitions provided in the 2018 order for short-term
and long-term drops are circular and too vague to ensure
that the permit conditions will ensure the persistence of the
listed fish species. Specifically, WaterWatch argues that the
department does not explain what is meant by “fairly stable
Cite as 324 Or App 362 (2023) 385
over time,” a drop to a “new normal,” or a “continued decline
in population level,” nor does it define the extent of the mag-
nitude, frequency, or timing of a drop that would constitute
a short-term versus a long-term drop.
For reference, a substantial portion of the discussion
in ODFW’s advice, which was adopted by the department in
the 2018 order, is set out above, 324 Or App 370-71, and
we do not repeat it here. We conclude that substantial evi-
dence and reason supports the department’s findings about
short-term versus long-term drops in relation to the fish-
persistence determination in this case. In the 2018 order,
the department supplied the evidence and reasoning that
was missing in the 2011 orders.
In the 2018 order, the department explained the fac-
tors for determining whether missed persistence flows con-
stitute short-term or long-term drops. Those factors are not
circular or impermissibly vague, but rather are grounded
in how the listed fish species—on a watershed, population
basis—use the affected reach and the effect of water with-
drawal of the undeveloped portion of the permits on that
use. That includes looking at the “frequency and magnitude
of the drop, when the drop occurs and the spatial extent and
characteristics of the reach where the drop occurs.” Those
factors specifically interplay with the explanations about
when the listed fish species use the affected reach, what
they use it for, and for how much of the population that use
is important.
Applying those factors, the department found that,
“[u]nder the Annual Scaled model water use scenario, the
drops below target flows happen only part of the time within
a given year, do not happen every year, are usually not a
large magnitude * * *, and occur over a small percentage of
basin habitat * * *.” As a result, the department “did not con-
sider the projected drops below target flows resulting from
municipal use of the undeveloped portions of the permits to
be ‘long-term’ in regard to the impact on any populations in
the basin.” However, accounting for the fact that the munic-
ipalities legally could use the full quantity of water under
their permits, although such use was unlikely, the depart-
ment adopted ODFW’s recommended curtailment condition
386 WaterWatch of Oregon v. Water Resources Dept.
because such a condition was necessary to avoid long-term
drops in persistence flows if such water use occurred.
WaterWatch does not explain how those findings
are lacking in substantial evidence and instead argues that
the explanation uses imprecise words for its factors or circu-
lar logic in defining short-term versus long-term. However,
the department’s logic is not circular, and our remand in
WaterWatch I never required such precision. What we con-
cluded was missing in the 2011 final orders was an expla-
nation that connected the findings about fish persistence
with the conclusion that the permits as conditioned would
not contribute to a long-term drop below persistence flows.
The department has now provided that necessary explana-
tion. The department was not required to come up with for-
mulaic definitions of short-term and long-term drops that
could be applied in the abstract to other affected reaches
or municipal permits or to provide precise triggering num-
bers for when a short-term drop becomes a long-term drop.
It was required to explain what it meant in using those
terms in the circumstances of this case with respect to the
fish-persistence determination in this case. In the context of
the whole record, which is how we are required to view the
issue, the department has supplied the necessary substan-
tial evidence and reason with respect to short-term versus
long-term drops that WaterWatch I found missing.
Relatedly, we also reject WaterWatch’s argument
that the department’s finding about Rhodes’s opinion that we
remanded in WaterWatch I is not supported by substantial
evidence. On remand, the department adequately addressed
the difference between short-term and long-term drops and
found that Rhodes’ analysis, which he had amended for
the remand hearing, was based on an assumption about
water use that was unsupported by the evidence. Primarily,
WaterWatch’s complaint is that the department did not
accept Rhodes’s analysis, which rejects many aspects of the
department’s analysis. It is not our role, on judicial review,
to reweigh expert evidence offered at a contested case hear-
ing. Our role is to determine whether the department could
weigh the evidence as it did. Kniss v. PERB, 184 Or App 47,
52, 55 P3d 526 (2002). On this record, we conclude that the
department could reasonably weigh the expert evidence as it
Cite as 324 Or App 362 (2023) 387
did and that substantial evidence supports the findings that
WaterWatch challenges.6 See also WaterWatch I, 268 Or App
at 217-18 (concluding that similar findings in the 2011 final
orders were supported by substantial evidence).
C. Curtailment Condition
WaterWatch also argues in its second assignment of
error that, in the 2018 order, the department has “function-
ally” eliminated the curtailment condition as a permit con-
dition. As we understand it, WaterWatch is arguing that, by
stating that the curtailment condition is a fish-persistence
condition “in a limited fashion” because it is only necessary
“in the unlikely event of continual use of the full quantity of
water allowed under the permits once the permits are fully
developed,” the department changed the condition so that it
cannot be triggered unless the municipalities continuously
use the full quantity of water. WaterWatch’s reading of the
2018 order and curtailment condition is unreasonable. The
department clearly explained that the curtailment condi-
tion is necessary for fish-persistence in the event that the
municipalities use the full amount of water under their per-
mits, and not according to the expected use as modeled by
the Annual Scaled Scenario. That explanation of how the
curtailment condition is connected to fish persistence does
not change, at all, the wording of the condition or how it is
triggered or applied, which is set out in Appendix C of the
2018 order. WaterWatch does not explain how the depart-
ment’s findings and conclusions lack substantial evidence or
reason, and we conclude that they are not so lacking.
Relatedly, we also reject WaterWatch’s argument
that the curtailment condition will not mitigate long-term
drops below persistence flows. As in WaterWatch I, 268 Or
App at 217-18, WaterWatch does not engage with the whole
record and relies solely on its own expert’s analysis. Here,
relying on Annear and ODFW’s experts, the department
concluded that the curtailment condition was not needed to
maintain the persistence of the listed fish species based on
the reasonable forecast of water use under the Annual Scaled
6
WaterWatch broadly challenges the department’s findings and opinion in
the 2018 order with respect to fish use of the reach during the low flow season,
including findings 13, 15, 18, 32, 34, 36, 37, and 38.
388 WaterWatch of Oregon v. Water Resources Dept.
Scenario. Instead, the department concluded the condition
was necessary in the “unlikely event” that the municipal
parties instead used the full amount of water available to
them at all times. We will not reweigh the experts’ opinions
as it is not our role, and the department reasonably could
weigh the evidence as it did to conclude that the curtailment
condition was only necessary to mitigate unlikely long-term
drops caused by the municipal parties’ water use, and that
it would mitigate those drops.
D. Fish-Persistence Determination
We turn to WaterWatch’s third assignment of error,
in which it raises a substantial evidence and reason chal-
lenge to the department’s fish-persistence determination,
which is based on WaterWatch’s assertion that the Annual
Scaled Scenario is not supported by substantial evidence
and that the department fails to explain why the Annual
Scaled Scenario meets the fish-persistence standard. We
address each of WaterWatch’s assertions in turn.
WaterWatch first argues that, “[b]ecause presumed
water use under the Scenario is dramatically lower than
that allowed by permit condition, the Scenario cannot pro-
vide substantial evidence to support the required fish per-
sistence determination.” That argument is another way of
saying that the department could not legally rely on the
type of data that the Annual Scaled Scenario presents. We
have already rejected that argument and do so again here.
WaterWatch next argues that the 2018 order cites
no evidence in support of the Annual Scaled Scenario or
the assumptions on which it is based. WaterWatch further
asserts that there is evidence in the record that refutes those
assumptions, because the evidence shows that the munici-
pal parties would make use of the water under the permits
in ways not accounted for by the Scenario, the Scenario does
not account for usage changes brought on by climate change,
and demand projections for some permit holders already
exceed the amount available under the permits.
It would not benefit the bench, bar, or the parties to
reiterate what is in the lengthy 2018 order, the most salient
parts of which are related above. We have reviewed the
Cite as 324 Or App 362 (2023) 389
relevant parts of the record, ODFW’s advice, and the 2018
order and conclude that the department’s findings about,
and use of, the Annual Scaled Scenario are supported by
substantial evidence. To determine the reasonableness of
the scenario, the department explicitly relied on the testi-
mony of Annear about the assumptions used, the full model
report, and explicitly rejected the testimony of WaterWatch’s
experts that relied on an assumption of water use that the
department found was unrealistic and not supported by the
evidence. The things WaterWatch points to as undercut-
ting the assumptions of the Annual Scaled Scenario were
all either (1) accounted for in some manner by the Annual
Scaled Scenario because it captures 15 years of historical
use data, (2) accounted for by the department in the 2018
order in making its determination, or (3) merely specula-
tive statements about possible future conditions. We again
decline WaterWatch’s attempts to have us weigh the evi-
dence in place of the department; that is not our role. The
Annual Scaled Scenario is the type of reasonable evidence
on which the department is entitled to rely for its fish-
persistence determination. As noted by the department in the
2018 order, WaterWatch’s arguments are primarily based on
its legal position, which we have rejected, that the required
assumption was full use of the permitted rights at all times.
Finally, WaterWatch argues that the department’s
fish-persistence determination is not supported by sub-
stantial evidence or reason, because its conclusion that the
Annual Scaled Scenario results in only short-term drops
below persistence flows does not apply the factors for short-
term versus long-term drops and does not cite supporting
data or explain why the identified drops are consistent with
fish persistence.
We reject WaterWatch’s arguments primarily because
they fail to engage with what the department found and
explained in the 2018 order. The department explicitly
applied and explained its application of the short-term
verses long-term drop factors to the forecasted use under
the Annual Scaled Scenario to determine that that use
would maintain the persistence of the listed fish species.
The “limiting factor” analysis that WaterWatch points out as
390 WaterWatch of Oregon v. Water Resources Dept.
irrelevant to the issue does not appear to have factored into
the department’s determination, as that analysis focuses on
when low flows occur relative to the use the listed fish species
make of the affected reach at that time. In making its argu-
ments, WaterWatch focuses on a couple of findings in the
2018 order as inadequate, while ignoring the other findings
and discussion that further support the department’s fish-
persistence determination. Moreover, in adopting the cur-
tailment condition as part of its fish-persistence determina-
tion, the department was taking into consideration the possi-
bility that future water use could exceed the Annual Scaled
Scenario. We conclude that the department adequately “con-
nected the dots” between its findings and its fish-persistence
determination that the undeveloped portions of the permits
are conditioned to maintain the persistence of the listed fish
species.
E. Remaining Substantial Evidence and Reason Arguments
Having disposed of the major challenges to the
department’s fish-persistence determination, we return to
WaterWatch’s remaining arguments in its second and fifth
assignments of error.
First, we reject, without further discussion, those argu-
ments made by WaterWatch which have not been sufficiently
developed for our review, which includes (1) WaterWatch’s
broad objections without further argument to various state-
ments or findings in the 2018 order, (2) WaterWatch’s argu-
ment that the department failed to address WaterWatch’s
exceptions in the 2018 order, and (3) WaterWatch’s argument
that the department did not focus on the affected portion of
the water way for its fish-persistence finding.
Second, we reject WaterWatch’s argument that the
department improperly shifted a burden of proof to it on
remand. WaterWatch’s argument is inappropriately pre-
sented in its second assignment of error, as it is not an argu-
ment about substantial evidence or reason. Nonetheless, the
department did not misunderstand any evidentiary burdens
when it stated that WaterWatch had the burden to present
evidence to support its expert’s assumptions about water
use. WaterWatch’s arguments rely solely on its assertion
Cite as 324 Or App 362 (2023) 391
that the department legally erred in considering the Annual
Scaled Scenario. We have already rejected that assertion.
Third, we also reject WaterWatch’s argument that
the department’s findings on stream temperature—findings
25 and 26—are not supported by substantial evidence or
reason. Having reviewed the relevant portions of the record,
we conclude that those findings are supported by substan-
tial evidence and reason.
Finally, we reject WaterWatch’s fifth assignment, in
which WaterWatch challenges the department’s deletion of
the ALJ’s recommended curtailment condition for the sum-
mer months as lacking substantial evidence. WaterWatch
also summarily states that the department’s climate change
conclusions are not supported by substantial evidence.
There is an initial problem with WaterWatch’s argu-
ment. The summer curtailment condition recommended
by the ALJ was not a finding of historical fact, nor a legal
conclusion by the ALJ; it was merely a suggestion based on
future uncertainty. The department rejected the ALJ’s sug-
gested additional condition because it was not supported by
a preponderance of evidence in the record and was instead
based on speculation. The department also explained that
the existing evidence on climate change was that the river
could have lower flows and higher temperatures in July and
August, which would have little effect on the listed species
because, during those months, “the evidence in the record
indicates that [the listed fish species] are not now nor will be
in the future using the Affected Reach to maintain the per-
sistence of their populations.” Those findings are supported
by substantial evidence in the record.
IV. COMPLIANCE WITH ORS 183.470(2)
In its fourth assignment of error, WaterWatch
requests that we remand the 2018 final order because it
fails to comply with ORS 183.470(2)7 because it does not con-
tain concise findings and does not apply ORS 537.230(3)(d)
7
ORS 183.470(2) provides, “In a contested case * * * [a] final order shall be
accompanied by findings of fact and conclusions of law. The findings of fact shall
consist of a concise statement of the underlying facts supporting the findings as
to each contested issue of fact and as to each ultimate fact required to support the
agency’s order.”
392 WaterWatch of Oregon v. Water Resources Dept.
to the facts. WaterWatch further argues that the recitals
and quotes of the evidence in the 2018 order are not appro-
priate findings, pointing specifically to findings 1 through
19, 23 through 28, 31 through 33, 35, and 36. We reject those
arguments.
The department made the findings necessary to
support its fish-persistence determination in this case and
they are sufficiently concise to for readers to understand the
department’s findings and conclusions. Where the depart-
ment quoted evidence—primarily the ODFW response—it
did so explicitly because it was adopting the quoted mate-
rial as its own findings that were supported by a preponder-
ance of the evidence in the record. The department explicitly
identified other quotes as recitations from the procedural
history of the case and descriptions of the evidence that fur-
ther supported its adopted findings from ODFW’s response.
Particularly under the circumstances here, where the
department is required to base its fish-persistence determi-
nation on existing data and the advice of ODFW, the depart-
ment’s incorporating that advice and providing the support-
ing evidence as part of its order was appropriate. Cf. Marbet
v. Portland Gen. Elect., 277 Or 447, 469 n 18, 561 P2d 154(1977) (findings that only stated that “PGE testified” or “the
staff believes” or “the staff has concluded” were not proper
findings of the agency as required by law); see also Western
States Petroleum Assn. v. EQC, 296 Or App 298, 313, 439
P3d 459 (2019) (“Nothing in Marbet, however, prevents EQC
from incorporating DEQ’s evaluation into its own evaluation
when undertaking its work.”). Also, as we concluded above,
the department did properly apply the law to the facts in
this case.
In sum, the department’s construction and appli-
cation of ORS 537.230(3)(d) are consistent with the legis-
lature’s expressed policy, and the department’s 2018 final
order is supported by substantial evidence and substantial
reason.
Affirmed.