WaterWatch of Oregon, Inc. v. Water Resources Department

Legislative direction to use existing data and sister-agency advice in coming to a conclusion does not preclude using existing data to project future data.

WaterWatch sought judicial review of a 2018 Water Resources Department (“Department”) order determining that the extension of certain water permits for the diversion of water from the lower reach of the Clackamas River will maintain the persistence of certain sensitive, threatened, or endangered fish species as required by ORS 537.230(3)(d). On judicial review, WaterWatch argued that the Department did not make a fish-persistence determination based on permit conditions, but rather a non-binding projected use model, the determination did not comply with ORS 537.230(3)(d). WaterWatch alternatively argued that the determination was not based on substantial evidence and reason. Legislative direction to use existing data and sister-agency advice in coming to a conclusion does not preclude using existing data to project future data. The Court, relying on its construction of the statute in an earlier iteration of the same case, found that the statute does not address “how the Department (or ODFW) is to determine whether conditions (or what kind of conditions) are needed for long-term fish population health, except that the finding should be based on “existing data and upon the advice of [ODFW].” Then, analyzing how the Department has interpreted ORS 537.230(3)(d), the Court determined that the methodology employed by the Department to make its fish-persistence determination was not contrary to the legislative policy expressed by the statute. The Court further held the Department made adequate findings based on substantial evidence and reason. Affirmed.