Argued and Submitted May 2, 2013.
ODFW 700142; CA A140936. On review from the Court of Appeals.[*]
The decision of the Court of Appeals and the Final Order on Reconsideration of the Oregon Department of Fish and Wildlife are reversed, and the case is remanded to the Oregon Department of Fish and Wildlife for further action.
Thomas M. Christ, Portland, argued the cause and filed the brief for petitioners on review. With him on the brief was Brian Posewitz, Portland.
Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Christopher G. Winter, Crag Law Center, Portland, and Peter M.K. Frost, Western Environmental Law Center, Eugene, filed the brief for amici curiae WaterWatch, Native Fish Society, Oregon Wild, Association of Northwest Steelheaders, and Northwest Environmental Defense Center.
[355 Or. 437] BALDWIN, J.
In a judicial review of an order of the Oregon Department of Fish and Wildlife (ODFW), the Court of Appeals rejected petitioners' contention that ODFW's approval of " channel-spanning fishways" associated with two small, privately maintained dams downstream from their property violated state law, including ODFW's own rules, pertaining to fish passage for native migratory fish. Petitioners had argued that the approvals were inconsistent with administrative rules and statutes that, in their view, require that fish passage be provided whenever water is flowing past the dams, whether over the tops of the dams or through outlet pipes required by the state Water Resources Department (WRD). The Court of Appeals rejected that argument, holding that ODFW had plausibly construed its own rules as requiring passage only when water is flowing over the dams, and that the rules, as interpreted, were not inconsistent with the controlling statutes. Noble v. Dept. of Fish and Wildlife, 250 Or.App. 252, 264, 279 P.3d 345 (2012). Petitioners sought review and we allowed their petition. We conclude that ODFW's interpretation of the rules is implausible, and we remand to that agency for further action under a correct interpretation.
Petitioners own a parcel of land through which a small, unnamed stream flows. The stream historically supported cutthroat trout and other native migratory fish. Petitioners would like those fish to return to their property, and they have invested a significant amount of money and effort in improving fish habitat in their portion of the stream. Petitioners' objective is for fish to have adequate passage upstream from nearby Beaver Creek, where the fish are present.
When the stream leaves petitioners' property, it flows downstream through properties owned by Wacker, Olson, Lytle, Stoyan, and Hillison, respectively, and thereafter into Beaver Creek. Small artificial dams have been erected on several of the downstream properties, creating ponds. The two dams at issue in this case -- those on the Lytle and Stoyan properties -- were erected long ago without any water rights or permits. Although petitioners sought to [355 Or. 438] have the dams removed as illegal, the property owners were able to obtain permits to maintain them from the WRD. The Lytle permit allows the storage of up to one acre-foot of water between November 1 and March 31 of each year. The Stoyan permit allows the storage of up to one acre-foot of water between November 1 and June 30 of each year. Both permits require the dam owners to " pass all live flow outside the storage season described," and prohibit appropriation of water " for any out of reservoir uses, the maintenance of the water level or maintaining a suitable fresh water condition." The permits also require the dam owners to install outlet pipes or provide other means to evacuate water to satisfy prior downstream water rights. Finally, and most significant to the present controversy, the permits require the owners to provide adequate fish passage, as determined to be necessary by ODFW.
When ODFW was contacted about the fish passage conditions, it determined that fish passage was required at [355 Or. 439] each of the two dams because the dams obstructed a stream in which native migratory fish historically had been present. Thereafter, each of the two dam owners developed a proposal for a fishway, installed the fishway, and sought ODFW's official approval.
The Lytle and Stoyan fishways involve alterations to the streambed on the downstream side of the relevant dam, creating a gradual slope from the top of the dam where a vertical drop previously had existed. The Lytle fishway " consists of various sized rocks leading in a ramp configuration up to the top of the Lytle dam, where a channel with a flat bottom and vertical sides * * * crosses the top of the Lytle dam to the Lytle pond." The Stoyan fishway " consists of a series of weirs [ i.e., v-shaped, step-like structures on the streambed] with pools below each weir, leading in steps from the base of the Stoyan dam up to the top of the Stoyan dam." Unlike the Lytle dam, the Stoyan dam has no engineered " channel" over the dam. ODFW personnel refer to both styles of fishways as " channel-spanning fishways."  Such channel-spanning fishways provide fish passage only when water is moving over the top of the associated dam; for all intents and purposes, the top of the dam is the fishway.
In November 2006, ODFW issued letters approving the Lytle and Stoyan fishways. Each letter of approval [355 Or. 440] described the pertinent fishway, noted that ODFW had determined that it was functioning properly, and stated that the owner was responsible for maintaining it as approved. Petitioners sought reconsideration of ODFW's approvals, and requested and obtained a contested case hearing.
At the hearing, conducted by an administrative law judge from the Office of Administrative Hearings, petitioners argued that ODFW's approvals of the Lytle and Stoyan fishways were improper because the fishways did not provide fish passage at all times when passage is required under the relevant statutes and administrative rules. Petitioners relied in part on ORS 509.585(2), which prohibits " construct[ing] or maintain[ing] any artificial obstruction across any waters of this state that are inhabited, or historically inhabited, by native migratory fish without providing passage" for such fish. Petitioners' primary focus, however, was an administrative rule, OAR 635-412-0035(2)(a), which requires fishways at artificial obstructions that provide fish passage at all flows within the design streamflow range -- that is, the entire range of flows within the obstructed stream, excepting the highest and lowest five percent. OAR 635-412-0005(13), (26), (30). Petitioners argued that the rule contemplates that ODFW will measure the flows within a stream, calculate a " design flow range," and
ensure that any fishway under consideration provide fish passage whenever the streamflow is within that range -- at least during times when ODFW has determined, based on the life cycles of the fish in question, that passage is required. At the hearing, petitioners established, through the testimony of ODFW employees, that ODFW had not calculated and applied the affected stream's " design flow range" or determined when the fish in question required passage before approving the Lytle and Stoyan fishways. Having done so, petitioners argued that the agency had violated its own rule.
ODFW's position at the hearing, articulated in the testimony of the agency's fish passage coordinator, Stahl, was that calculation of the design flow range as contemplated by OAR 635-412-0035(2)(a) was unnecessary for " channel-spanning" fishways like those approved for the Lytle and Stoyan dams. Stahl explained that, by its very nature, a channel spanning fishway uses the entire flow of a stream, [355 Or. 441] and that determining the " design streamflow range" when fish passage will be required is not necessary for such fishways, because they provide fish passage whenever water is flowing past the dam.
Petitioners argued, however, that OAR 635-412-0035(2)(a) applies to all the water in a stream system, and that ODFW's notion of " streamflow" did not account for water leaving the Lytle and Stoyan ponds through evaporation, seepage, and, most importantly, the outlet pipes that were required under the WRD permits. Petitioners observed, in that regard, that the Lytle and Stoyan permits required the installation of outlet pipes (or some other mechanism) to facilitate the evacuation of water to downstream permit holders with priority, required the passage of all " live" flows outside the storage season, and prohibited appropriation of any additional water outside of the storage season to maintain water levels.
ODFW's contrary view of OAR 635-412-0035(2)(a) was conveyed in the testimony of coordinator Stahl. Stahl acknowledged that, at times, water might not be flowing through the Lytle and Stoyan fishways even when water is flowing from various sources into the subject ponds, at least in part because water is sometimes discharged through the outlet pipes to satisfy the prior rights of downstream users. Stahl testified, however, that any water released downstream through outlet pipes in response to a downstream water right holder's " call" would not be considered by ODFW to be live streamflow. According to Stahl, " [i]f it's not going over the fishway [ i.e., over the top of the dam], it's not in the stream." Stahl also suggested that, because OAR 635-412-0035(2)(a) was adopted at a time when channel-spanning fishways were uncommon, the rule reflected concerns more relevant to traditional fish ladder-type fishways, which divert a part of a stream for fish passage during the times that, in ODFW's estimation, the native fish would require passage.
After the hearing, the administrative law judge issued a proposed final order concluding that ODFW had complied with the applicable statutes and rules in approving the Lytle and Stoyan fishways. ODFW affirmed that [355 Or. 442] conclusion. In its final order, ODFW announced that it had determined that fish passage is required " year-round" for the fishways in question, but only when there is adequate flow to allow migration through the fishways. ODFW explained that channel-spanning fishways like the ones at issue provide fish passage " as a matter of law" whenever sufficient streamflow exists for fish to migrate, and that, as such, ODFW could determine, without precise calculation of the design streamflow range, that the fishways provided fish passage at all flows within the design streamflow range. For purposes of that analysis, ODFW rejected petitioners' interpretation of " streamflow," concluding that " streamflow" is the water that actually moves through the system and over the dams, and does not include water that is stored and then later released through outlet pipes or lost to evaporation or seepage.
Petitioners sought judicial review of ODFW's final order, arguing, among other things, that (1) the rules do not allow ODFW to insert a flow requirement into the concept of " year-round fish passage" ; (2) ODFW's construction of the term " streamflow" in OAR 635-412-0035(2)(a) as referring, in the particular context of dams with so-called
channel-spanning fishways, only to water actually moving over the dam and through the fishway, is implausible and erroneous; (3) the factual assumptions underpinning ODFW's position that it was unnecessary to calculate and apply the stream's " design streamflow range" for channel-spanning fishways at the dams are not supported by substantial evidence; and (4) if ODFW's construction of the rule is correct, the rule is inconsistent with ORS 509.585(2), which provides that a person may not construct or maintain an ...