Waterwatch v. Water Resources Commission

• Decision Date: 09 September 2005
• Docket Number: Agency No. CC 13.,S51587.,CA A113693.,SC S51586.
• Citation: 339 Or. 275,119 P.3d 221
• Parties: WATERWATCH OF OREGON, INC., an Oregon nonprofit corporation, Respondent on Review, v. WATER RESOURCES COMMISSION, a state agency; Water Resources Department, a state agency; and Coos Bay-North Bend Water Board, an Oregon Municipal Corporation, Petitioners on Review, and City of Lakeside, an Oregon municipal corporation; Tenmile Lakefront Owners Association; and Department of Fish and Wildlife, a state agency, Other parties.
• Court: Oregon Supreme Court

119 P.3d 221

339 Or. 275

WATERWATCH OF OREGON, INC., an Oregon nonprofit corporation, Respondent on Review, v. WATER RESOURCES COMMISSION, a state agency; Water Resources Department, a state agency; and Coos Bay-North Bend Water Board, an Oregon Municipal Corporation, Petitioners on Review, and City of Lakeside, an Oregon municipal corporation; Tenmile Lakefront Owners Association; and Department of Fish and Wildlife, a state agency, Other parties.

Agency No. CC 13.

CA A113693.

SC S51586.

S51587.

Supreme Court of Oregon, En Banc.

Argued and Submitted January 7, 2005.

Decided September 9, 2005.

On review from the Court of Appeals.^*

Philip Schradle, Special Counsel to the Attorney General, argued the cause for petitioners on review Oregon Water Resources Commission and Oregon Water Resource Department. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

James C. Coffey, of Stebbins & Coffey, North Bend, argued the cause and filed the briefs for petitioner on review Coos Bay-North Bend Water Board.

Brian Posewitz, of Tonkon Torp LLP, Portland, argued the cause and filed the briefs for respondent on review WaterWatch of Oregon, Inc.

Richard M. Glick and Margarita Molina, of Davis Wright Tremaine LLP, Portland, filed briefs on behalf of amici curiae League of Oregon Cities, Special Districts Association of Oregon and Oregon Association of Water Utilities.

David E. Filippi and Ellen Hawes Grovers of Stoel Rives LLP, Portland, filed briefs on behalf of amicus curiae Oregon Water Resources Congress.

DE MUNIZ, J.

This case centers on the statutes governing the water appropriation permit process. Coos Bay-North Bend Water Board (CBNB) applied to the Water Resources Department (the department) for a permit to appropriate water from a creek. The department issued a proposed final order approving the permit application. WaterWatch and others opposed the issuance of the permit asserting that it was not in the public interest. The department held a contested case proceeding. Thereafter the Water Resources Commission consider the matter and approved the permit. WaterWatch sought judicial review arguing that the permit violated the public interest because CBNB would not complete construction of the water diversion project within a statutorily mandated five-year period. The Court of Appeals agreed with WaterWatch and reversed the final order. WaterWatch v. Water Resources Commission, 193 Or.App. 87, 88 P.3d 327 (2004).

We allowed CBNC's petition for review in order to examine the statutory interpretation question addressed by the Court of Appeals. In the meantime, however, the 2005 Legislative Assembly enacted House Bill (HB) 3038 (2005), which the Governor signed into law.¹ The measure now is designated as Oregon Laws 2005, chapter 410. Section 5(3) of the measure provides:

"All final orders by the department that resulted in the issuance of a water right permit, the issuance of a water right certificate or the approval of an extension of time to complete construction or to perfect a water right for a municipal use that were issued before the effective date of this 2005 Act are...