WaterWatch v. Water Resources Commission

• Decision Date: 18 May 2005
• Citation: 112 P.3d 443,199 Or. App. 598
• Parties: WATERWATCH OF OREGON, INC., an Oregon nonprofit corporation; Len Mathisen; Craig Lacy; Rebecca Bozarth; Audrey Simmons; Roger A. Bachman; Imperial River Company; Deschutes Canyon Fly Shop; Alder Creek Kayak Supply, Inc.; Oregon Natural Desert Association, an Oregon nonprofit corporation; Northwest Environmental Defense Center, an Oregon nonprofit corporation; Alliance for Responsible Land Use in Deschutes County, an Oregon nonprofit corporation; Oregon Trout, an Oregon nonprofit corporation; and Oregon Council of Trout Unlimited, an Oregon nonprofit corporation, Petitioners, v. WATER RESOURCES COMMISSION and Dan Thorndike, Chairperson, Water Resources Commission, Respondents.
• Court: Oregon Court of Appeals

112 P.3d 443

199 Or. App. 598

WATERWATCH OF OREGON, INC., an Oregon nonprofit corporation; Len Mathisen; Craig Lacy; Rebecca Bozarth; Audrey Simmons; Roger A. Bachman; Imperial River Company; Deschutes Canyon Fly Shop; Alder Creek Kayak Supply, Inc.; Oregon Natural Desert Association, an Oregon nonprofit corporation; Northwest Environmental Defense Center, an Oregon nonprofit corporation; Alliance for Responsible Land Use in Deschutes County, an Oregon nonprofit corporation; Oregon Trout, an Oregon nonprofit corporation; and Oregon Council of Trout Unlimited, an Oregon nonprofit corporation, Petitioners, v.WATER RESOURCES COMMISSION and Dan Thorndike, Chairperson, Water Resources Commission, Respondents.

A119779.

Court of Appeals of Oregon.

Argued and Submitted May 24, 2004.

Decided May 18, 2005.

Karen A. Russell, Portland, argued the cause for petitioners.With her on the joint briefs was Christopher G. Winter, Portland.

Jas. Jeffrey Adams, Senior Assistant Attorney General, argued the cause for respondents.With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before WOLLHEIM, Presiding Judge, and SCHUMAN, Judge, and DEITS, Judge pro tempore.

DEITS, J. pro tempore.

Petitioners seek review of two sets of rules that the Water Resources Commission(commission) adopted in September 2002.OAR 690-505-0400 to 690-505-0630; OAR 690-521-0100 to 690-521-0600.Those rules govern the commission's decision to grant groundwater permits in the Deschutes River Basin.One set of rules amended the Deschutes Basin Program, a water management and use program, to allow for the appropriation of groundwater in the basin and to establish mitigation requirements.The other set of rules provides for the establishment of mitigation banks and mitigation credits in the basin.On review, petitioners assert that the commission exceeded its statutory authority in promulgating those rules.SeeORS 183.400(4)(b)(providing that "[t]he court shall declare the rule invalid only if" it determines that the rule "[e]xceeds the statutory authority of the agency[.]").Specifically, petitioners contend that the rules violate various statutes governing (1) scenic waterways, seeORS 390.805-390.925;(2) groundwater rights, seeORS 537.505-537.795; and (3) instream water rights, seeORS 537.332-537.360.For the reasons that we will explain, we conclude that the challenged rules are invalid.

We begin with the issue of petitioners' standing to seek judicial review.Petitioners are several entities and individuals.Pursuant to ORS 183.400, "[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases."SeeLovelace v. Board of Parole(A109609), 183 Or.App. 283, 286-89, 51 P.3d 1269(2002)(reasoning that statutory standing under ORS 183.400 is not limited to persons who are adversely affected or aggrieved by the agency's action and holding that, under ORS 183.400, any person has statutory standing to challenge the validity of a rule).In this case, Roger Bachman, a flyfisherman on the Deschutes River system for the past 40 years, is one of the individual petitioners.We conclude that he has statutory standing to challenge the validity of the rules.

In addition to statutory standing, a petitioner must also have constitutional standing-that is, a petitioner must demonstrate that a decision in the case will have a practical effect on his or her rights.Kellas v. Dept. of Corrections,190 Or.App. 331, 334, 78 P.3d 1250(2003), rev. allowed,337 Or. 282, 96 P.3d 347(2004)(for purposes of constitutional standing, "a petitioner seeking to challenge a rule under ORS 183.400 must demonstrate that he or she has a legally recognized interest at stake and that the relief sought-validation or invalidation of an administrative rule-would have a practical effect on that interest");see alsoDoty v. Coos County,185 Or.App. 233, 59 P.3d 50(2002), clarified on recons.,186 Or.App. 580, 64 P.3d 1150(2003)(holding that a petitioner in a judicial review from the Land Use Board of Appeals had constitutional standing because the land use decision would affect her use and enjoyment of a nearby estuary that she used for passive recreation).Under certain circumstances, a petitioner may submit evidence demonstrating his or her constitutional standing for the first time on judicial review.Friends of Eugene v. City of Eugene,195 Or.App. 20, 22, 28, 30, 96 P.3d 1256(2004)(holding that the petitioner could demonstrate its constitutional standing for the first time on judicial review of an order of the Land Use Board of Appeals because the need to do so first arose when the petitioner sought to invoke the court's jurisdiction on judicial review).

In this case, Bachman's affidavit accompanied the petition for judicial review.In that affidavit, he avers, in part:

"3.In 1974 my family, together with another family, purchased some land on the Lower Deschutes River for a fishing camp.Over the past twenty eight years my family and I have spent a lot of time using and enjoying the property by flyfishing the Deschutes, marveling in the splendor of the river and the native fish and wildlife that inhabit the river and boating the river.Through the years we have shared this wonderful experience with many guests.

"4.Since purchasing the property I have watched flow levels and stream temperature in the Deschutes River get closer and closer to levels that are harmful for salmon and trout.Diminished streamflows have a direct and adverse effect on my use and enjoyment of my property because it destroys habitat needed for wild fish.Diminishment of streamflows in the river system below those flows needed for these important river values threatens to deprive me of the enjoyment of these activities with my children, as well as deprive my children and their children of activities centered upon the wonders of a free flowing river system such as the Deschutes River.

"* * * * *

"8.I participated in the administrative proceedings surrounding the final adoption of the rules being challenged in the above captioned litigation.I provided comments on drafts of the rule.I believe the rules will result in the ultimate diminishment of streamflows needed for the Deschutes River system, including those segments that I have dedicated so much of my time to protect."

Based on those averments, we conclude that Bachman has constitutional standing.

Because Bachman has statutory and constitutional standing and because he and the other petitioners make the same arguments on review, it is immaterial whether the other petitioners have standing, and we do not consider that issue.Barton v. City of Lebanon,193 Or.App. 114, 118, 118 n. 2, 88 P.3d 323(2004).For that reason, as we address the merits of the rule challenge, we use the term "petitioner" to refer only to Bachman.

On review, petitioner asserts that the commission exceeded its statutory authority in (1) amending the Deschutes Basin Program to allow the appropriation of groundwater in the basin and establishing mitigation requirements, OAR 690-505-0400 to 690-505-0630, and (2) promulgating rules governing mitigation credits as well as the establishment of mitigation banks in the basin, OAR 690-521-0100 to 690-521-0600.Petitioner makes three basic challenges to the rules.First, he contends that the rules governing mitigation for new and existing groundwater uses do not maintain the free-flowing character of the waters in the designated scenic waterways in quantities necessary for recreation, fish, and wildlife as ORS 390.835 requires.Second, he contends that the rules "overallocate surface waters in the basin" and will not protect existing instream rights because the "standard for `mitigation' * * * does not protect instream water rights from diminishment."Finally, petitioner contends that the commission holds the water rights in trust for the public and that, because the challenged rules "allow ground water withdrawals to deplete surface water flows needed for river segments that support existing public instream uses," the commission violated its "public trust responsibility."Thus, according to petitioner, the rules are invalid.

Respondents, the commission and its chairperson, disagree.They contend that the rules fully comply with the statutory requirements to protect scenic waterways and instream flows and do not violate the commission's public trust responsibilities.Because it is dispositive, we address only petitioner's first argument.

We consider the nature of our review before discussing the merits of this case, because it has a significant effect on our analysis.Respondents assert that a rule challenge pursuant to ORS 183.400 is a "facial" challenge.According to respondents, "[t]he concept of a `facial' versus an `as applied' challenge is essentially no different for a rule challenge from what it is for a challenge to the constitutionality of a statute."Thus, respondents reason, "a facial challenge cannot succeed unless it can establish that the challenged enactment could not be validly applied in any scenario."(Emphasis in original.)In this case, respondents assert that petitioner cannot prevail unless he"can demonstrate that the rules are not capable of any application that is consistent with the governing statutes."(Emphasis in original.)

We disagree with respondents' view of the nature of our review in a rule challenge.Although we and the Supreme Court have used the words "facial" and "as applied" in discussing our review of administrative rules,¹we do not understand that the use of those terms imported a new means of review for rule challenges pursuant to ORS 183.400.Instead, Oregon courts have used those terms to describe the following principles: In a rule challenge pursuant to ORS 183.400, "judicial review * * * is limited to the face of the rule and the...