WaterWatch v. Water Resources Commission

• Decision Date: 21 April 2004
• Citation: 193 Or. App. 87,88 P.3d 327
• Parties: WATERWATCH OF OREGON, INC., an Oregon nonprofit corporation, Petitioner, v. WATER RESOURCES COMMISSION, a state agency; Water Resources Department, a state agency; Coos Bay North Bend Water Board, an Oregon municipal corporation, Respondents, 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 Court of Appeals

88 P.3d 327

193 Or. App. 87

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

CC 13; A113693.

Court of Appeals of Oregon.

Argued and Submitted April 14, 2003.

Decided April 21, 2004.

Brian J. Posewitz, Portland, argued the cause and filed the briefs for petitioner. With him on the brief was Tonkon Torp LLP.

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

James C. Coffey, North Bend, argued the cause for respondent Coos Bay North Bend Water Board. With him on the brief was Stebbins & Coffey.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.

DEITS, C.J.

Petitioner, WaterWatch of Oregon, Inc., seeks review of a final order of the Oregon Water Resources Commission (commission), approving a water appropriation permit.¹ WaterWatch challenged the permit application on several grounds, including that the applicant, the Coos Bay North Bend Water Board (CBNB), could not make beneficial use of the water within the five-year limit provided in ORS 537.230(1) (1997).² Ultimately, the commission rejected WaterWatch's challenges and approved the permit with conditions. On review, we reverse and remand.

In March 1990, CBNB applied to the Water Resources Department (department) for a permit to appropriate water from Tenmile Creek in Coos County. CBNB also prepared four alternative water demand forecasts, each projecting different growth and water needs through as late as 2050. Apparently, CBNB sought to appropriate water for a potential industrial user and for an existing industrial user that projected a greater need; however, the potential user ultimately decided not to locate its facility in Coos County and the existing user reduced its projected need.

In December 1997, the department issued a proposed final order, approving the requested appropriation permit with conditions. WaterWatch and others, including the City of Lakeside, filed protests, and the department held a contested case proceeding. Thereafter, the commission considered the matter and approved the permit. The commission found CBNB's third water demand forecast, which used a base demand derived from past experience plus a projected additional industrial demand, to be "reasonable." WaterWatch asserted that that forecast showed that CBNB would not need water beyond its present resources and planned capacity until approximately 2050. The commission, however, accepted the contrary position that, by 2050, the need will be 3 million gallons of water per day. A diversion of 4.6 cubic feet per second would supply that need, but the commission allowed an additional 18.6 cubic feet per second in order to accommodate a potential industrial user who might require as much as 12 million gallons of water per day. The commission issued its final order granting the permit and allowing CBNB to withdraw water at a maximum rate of 23.2 cubic feet per second. WaterWatch seeks our review of that order.

Before turning to the merits, we must address the jurisdictional issue of whether WaterWatch has standing to seek judicial review of the commission's order. We first determine whether WaterWatch has standing under the pertinent statutes. See Utsey v. Coos County, 176 Or.App. 524, 548-49, 32 P.3d 933 (2001), rev. dismissed, 335 Or. 217, 65 P.3d 1109 (2003). In making that determination, under the holding in Local No. 290 v. Dept. of Environ. Quality, 323 Or. 559, 566, 919 P.2d 1168 (1996), a case concerning only statutory standing, we are directed to the requirements of the specific statute that confers standing in a particular type of proceeding. We then must determine whether the constitutional requirements for standing have been satisfied. Utsey, 176 Or.App. at 548-49, 32 P.3d 933. In response to our inquiry, WaterWatch asserts that it has statutory and constitutional standing to seek review of the commission's order.

WaterWatch first argues, relying on ORS 183.480 and ORS 183.482, which are general review provisions of Oregon's Administrative Procedures Act (APA), that its party status before the commission gives it statutory standing to seek review of the commission's order in this court. Specifically, WaterWatch relies on ORS 183.480(1), which provides, in pertinent part, that "any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order, whether such order is affirmative or negative in form." (Emphasis added.)

The problem with WaterWatch's reliance on those general APA provisions, however, is that Oregon's water law statutes include specific provisions governing judicial review in these circumstances. Those water law statutes contain different standing requirements from the general APA provision cited above. To the extent that the more general provisions of the APA and the specific water law statutes concerning judicial review are different, the water law statutes control. ORS 174.020(2).

The water law statute concerning judicial review is ORS 536.075(2), which provides that "[a]ny party affected by a final order in a contested case issued by the Water Resources Commission or the Water Resources Department may appeal the order to the Court of Appeals." The plain language of ORS 536.075(2) indicates that affected parties may seek review of a final order. Under the water law statutes, a party to a contested case before the department includes "any person who timely filed a protest." ORS 537.170(2)(b).³ "Any person may submit a protest against a proposed final order." ORS 537.153(6). An association such as WaterWatch is a person. ORS 174.100(5).⁴ Further, after a contested case hearing and the issuance of a final order under ORS 537.170, "any party may file exceptions to the order" with the commission. ORS 537.173. Here, the parties do not dispute that WaterWatch filed a timely protest against the proposed order and filed exceptions. Accordingly, WaterWatch was a party.

As noted above, the plain language of ORS 536.075(2) also provides that, in order to seek review of a final order, a party must be "affected" by the order. Notably, that statute does not require the party to be "adversely affected" or "aggrieved," common terms used to describe standing to seek review of administrative actions. Because the text of ORS 536.075(2) does not define the term "affected," we look to the context of ORS 536.075 to determine the legislature's intent. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993).

The above statutes as well as a number of related statutes are indicative of the nature of the interests that the legislature intended a party to have to be considered "affected" by an order of the commission. The approval process involves a public interest determination. See, e.g., ORS 537.153 (describing the rebuttable presumption that a proposed use will not impair or be detrimental to the public interest); ORS 537.170 (providing that, if the presumption is rebutted, the director or commission shall determine whether the proposed use would impair or be detrimental to the public interest by considering the described factors). As discussed above, to assist in making that determination, the legislature has allowed any person to submit a protest to a proposed order and become a party to the contested case. ORS 537.153(6) requires, in part, that a protest must include, among other things:

"(b) A description of the protestant's interest in the proposed final order and, if the protestant claims to represent the public interest, a precise statement of the public interest represented;

"(c) A detailed description of how the action proposed in the proposed final order would impair or be detrimental to the protestant's interest[.]"

The above statutes demonstrate that the legislature intended three groups of persons to become parties to a contested case proceeding concerning a water permit: (1) the applicant; (2) a person who requests standing, which under the statutes means a person who supports the proposed final order; and (3) a person who protests the proposed final order. Those statutes also demonstrate that a protestant's interests may include the public interest. Accordingly, by specifically defining who is a party to a contested case proceeding concerning a water permit, the legislature has identified three groups of persons who are affected by the proposed final order in either positive or negative ways. Even after the contested case proceeding, any party may file exceptions with the commission. Consequently, it is apparent that the legislature contemplated that a party to a contested case proceeding may be affected by the commission's order. ORS 536.075(2) ("Any party affected by a final order in a contested case issued by the [commission] * * * may appeal the order to the Court of Appeals.").

In this case, WaterWatch indicated in its protest that it was representing "the general public interest in the water resources of this state" as well as the interests of its members and itself. WaterWatch also described the specific interests that it represented and explained how the proposed final order would impair or be detrimental to those interests. Additionally, in its petition for judicial review, WaterWatch indicated that it would be adversely affected by the commission's order. See ORS 536.075(4).⁵ Specifically, in its response to our inquiry regarding its standing, WaterWatch indicated that it...