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Diack v. Portland, City of

Citation: 19 ELR 20114
No. No. SC S34223, 759 P.2d 1070/306 Or. 287, (Or., 07/26/1988)

The court rules that the provisions of Oregon's Scenic Waterways Act (SWA) that restrict the construction and operation of diversion facilities apply to the diversion of water from tributaries that flow into designated scenic waterways. Plaintiffs challenge the Oregon Water Commission's issuance of a permit to the City of Portland for diversion of water from the Bull Run River for the generation of hydroelectric power. Downstream from the proposed diversion point, the Bull Run River flows into a portion of the Sandy River that is designated as a scenic waterway. The court first holds that the Commission has regulatory jurisdiction over the city's plan. Although the Oregon legislature has granted the city exclusive rights to use the waters of the Bull Run River, those rights are limited to providing a municipal water supply and do not encompass generation of hydroelectric power. The court next rules that the SWA's diversion provisions apply to diversion of water from tributaries of scenic waterways. No express language in the statute limits its applicability to diversion facilities located within scenic waterways. The court remands the case to the Commission for a determination of whether the proposed diversion is necessary to one of the beneficial uses identified in the statute. On remand, the Commission should not rely on the revenue estimates for the project as originally proposed, but should determine the income that the project will generate if it operates under the restrictions imposed by the permit. The court holds that the Commission's factual findings support its conclusion that the streamflows designated in the Commission's order granting the permit will adequately protect recreation, fish, and wildlife uses. Finally, the court directs that on remand, the Commission explain more fully its application of public interest criteria to the proposed project.

Counsel for Petitioners
William P. Hutchison Jr.
Hutchinson, Hutchison & Hooper
333 SW Taylor St., Portland OR 97204
(503) 223-5181

Counsel for Respondent
Philip Schradle, Ass't Attorney General
400 Justice Bldg., Salem OR 97310
(503) 378-4402