WaterWatch of Oregon v. Water Resources Dept.

362

Argued and submitted January 8, 2021, affirmed March 1, 2023

WATERWATCH OF OREGON, INC.,

an Oregon nonprofit corporation,

Petitioner,

v.

WATER RESOURCES DEPARTMENT,

a state agency;

Water Resources Commission,

a state agency;

South Fork Water Board,

an Oregon municipal corporation;

City of Tigard,

an Oregon municipal corporation;

North Clackamas County Water Commission,

an Oregon municipal corporation;

Sunrise Water Authority,

an Oregon municipal corporation; and

City of Lake Oswego,

an Oregon municipal corporation,

Respondents.

Oregon Water Resources Department

S3778, S9982, S22581;

A169652 (Control)

WATERWATCH OF OREGON, INC.,

an Oregon nonprofit corporation,

Petitioner,

v.

WATER RESOURCES DEPARTMENT,

a state agency;

Water Resources Commission,

a state agency;

North Clackamas County Water Commission,

an Oregon municipal corporation;

Sunrise Water Authority,

an Oregon municipal corporation;

City of Tigard,

an Oregon municipal corporation;

City of Lake Oswego,

Cite as 324 Or App 362 (2023) 363

an Oregon municipal corporation; and

South Fork Water Board,

an Oregon municipal corporation,

Respondents.

Oregon Water Resources Department

S46120, S35297, S43170;

A169651

WATERWATCH OF OREGON, INC.,

an Oregon nonprofit corporation,

Petitioner,

v.

WATER RESOURCES DEPARTMENT,

a state agency;

Water Resources Commission,

a state agency;

City of Lake Oswego,

an Oregon municipal corporation;

City of Tigard,

an Oregon municipal corporation;

North Clackamas County Water Commission,

an Oregon municipal corporation;

Sunrise Water Authority,

an Oregon municipal corporation; and

South Fork Water Board,

an Oregon municipal corporation,

Respondents.

Oregon Water Resources Department

S32410, S37839;

A169650

527 P3d 1

Petitioner challenges a final order of the Oregon Water Resources Department

(the department) that grants extensions of time to perfect municipal water right

permits with diversions in the lower 3.1 miles of the Clackamas River. The key

issue is whether the department could determine that the “undeveloped por-

tion[s]” of the permits were conditioned to maintain the persistence of listed fish

species in the lower 3.1 miles of the river, as required by ORS 537.230(3)(d). In a

prior judicial review, the Court of Appeals had determined that the department’s

fish-persistence determination lacked both substantial evidence and substantial

reason and remanded the case to the department. On remand, the department

developed additional evidence and again granted the extensions. In this judicial

review of that final order after the remand, petitioner argues that the depart-

ment’s decision is contrary to ORS 537.230(3)(d), is not supported by substantial

364 WaterWatch of Oregon v. Water Resources Dept.

evidence or reason, and fails to contain concise findings and to apply the law

to the facts. Held: The department’s construction of ORS 537.230(3)(d), which

included consideration of forecasted water use under fully developed permits to

make its fish-persistence determination, is consistent with the legislative policy

expressed in that statute; the department’s order is supported by substantial

evidence and substantial reason; and the department’s statement of facts in the

order is sufficiently concise and the department applied the law to the facts.

Affirmed.

Lisa A. Brown argued the cause and filed the briefs for

petitioner.

Phillip M. Bender argued the cause for respondents City

of Lake Oswego, City of Tigard, North Clackamas County

Water Commission, and Sunrise Water Authority. Also on

the brief were Jeffery W. Ring, Mark P. Strandberg, and

Ring Bender LLP.

Inge D. Wells argued the cause for respondents Oregon

Water Resources Department and Oregon Water Resources

Commission. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Christopher D. Crean argued the cause and filed the

brief for respondent South Fork Water Board. Also on the

brief was Beery, Elsner & Hammond, LLP.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

ORTEGA, P. J.

Affirmed.

Cite as 324 Or App 362 (2023) 365

ORTEGA, P. J.

This water rights case is before us a second time

after our remand to the Oregon Water Resources Department

(OWRD or the department) in WaterWatch of Oregon v.

Water Resources Dept., 268 Or App 187, 342 P3d 712 (2014)

(WaterWatch I). In WaterWatch I, we reviewed three final

orders of the department which granted to the City of Lake

Oswego,1 the North Clackamas County Water Commission,2

and the South Fork Water Board (collectively, the munici-

pal parties) extensions of time to perfect water rights under

their respective water permits for the diversion of water

from the lower reach of the Clackamas River for munici-

pal use (the 2011 orders). The key issue in WaterWatch I

was whether the department could determine, as it had,

that the “undeveloped portion” of the municipal parties’

permits were conditioned “to maintain, in the portions of

waterways affected by water use under the permit, the per-

sistence of fish species listed as sensitive, threatened or

endangered under state or federal law,” as required by ORS

537.230(3)(d).3 We reversed and remanded the 2011 orders,

concluding that the department’s fish-persistence determi-

nation lacked both substantial evidence and substantial

reason.

On remand, the department reopened the hear-

ing, took additional evidence, and issued a final order after

remand (the 2018 order) which supplemented the 2011

orders. The department again determined that the permits

as conditioned will maintain the persistence of the listed

fish species and placed conditions on the permits that are

substantially similar to the conditions placed on the per-

mits in the 2011 orders. WaterWatch seeks judicial review

of the 2018 order, arguing that the decision is contrary to

1

Respondent the City of Tigard is not a holder of one of the water permits

at issue. However, Tigard was granted party status because it has an interest in

Lake Oswego’s permits through an intergovernmental agreement.

2

Respondent Sunrise Water Authority is a co-permittee with North Clackamas

County Water Commission on one permit.

3

At the time of the first appeal and the hearing on remand, the statutory

subsection at issue appeared in ORS 537.230(2)(c), which the legislature renum-

bered to ORS 537.230(3)(d) in 2017. Or Laws 2017, ch 704, § 1. Because the text of

the provision was not amended, we use the current numbering.

366 WaterWatch of Oregon v. Water Resources Dept.

ORS 537.230(3)(d), is not supported by substantial evidence

or reason, and violates ORS 183.470(2), by failing to contain

concise findings and to apply the law to the facts.

We conclude that the department did not err in

its construction and application of ORS 537.230(3)(d).

WaterWatch’s arguments raise the issue of whether the

department could, under the terms of the statute, consider

forecasted actual water use of the municipalities at full

permit development as a type of “existing data” on which

to base its fish-persistence determination. In addressing

that issue, we conclude that the department’s construc-

tion of the statute, which includes considering forecasted

water use, is consistent with the legislative policy of ORS

537.230(3)(d). We also conclude that the 2018 order is sup-

ported by substantial evidence and substantial reason, and

that it does not violate ORS 183.470(2). Accordingly, we

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In WaterWatch I, we provided a succinct overview of

the issue in this case from which we will proceed:

“The municipal parties are holders of eight separate

water-right permits for municipal use that have points of

diversion in the lower 3.1 miles of the Clackamas River

(affected reach or lower reach). The holder of a permit for

municipal water use must complete construction of any

works within 20 years of obtaining the permit and put the

water right to complete use within the time frame specified

in the permit. ORS 537.230[(3)]. A municipal water holder

can obtain an extension of time of those deadlines if the

department finds that three statutory conditions have been

satisfied. Id. At issue in these cases is the department’s

application of the third statutory condition in granting the

municipal parties’ requested extensions.

“That condition required the department to find that

the ‘undeveloped portion’ of the municipal parties’ permits

are ‘conditioned to maintain, in the portions of waterways

affected by water use under the permit, the persistence of

fish species listed as sensitive, threatened or endangered

under state or federal law.’ ORS 537.230[(3)(d)]. The stat-

ute requires the department to ‘base its finding on existing

Cite as 324 Or App 362 (2023) 367

data and upon the advice of the State Department of Fish

and Wildlife.’ Id.”

WaterWatch I, 268 Or App at 191-92 (footnotes omitted).

As required by statute, the department sought

the advice of the Oregon Department of Fish and Wildlife

(ODFW), and ODFW identified “target streamflows for fish

persistence for each season (persistence flows) and advised

the department to condition the undeveloped portion of each

of the permits to ‘maintain persistence of listed fish species

consistent with the recommended flows.’ ” Id. at 196. From

April to June, ODFW advised that missing persistence flows

would be “ ‘an extremely rare event’ ” and measures taken

to address such an event “ ‘should be reflective of how much

recommended flows are being missed by and the percentage

of water that is withdrawn by the municipality compared

to the overall streamflow level.’ ” Id. From July to August,

ODFW advised that, on occasion, persistence flows would

not be met and that the permit holders should develop a plan

to “ ‘provide for a contingency to reduce [their] water use or

augment stream flows using releases from Timothy Lake.’ ”

Id. (emphasis and boldface in original). From September

to November, ODFW advised that, for missed persistence

flows, the permit holders should develop a plan “ ‘to augment

stream flows and reduce [their] water use to minimize its

impact.” Id. at 197 (emphasis and boldface in original). From

December to March, ODFW advised that it did not antici-

pate flow-related issues. Id.

After receipt of that advice, the department granted

the municipal parties’ requested extensions. It found that

“the use of the undeveloped portions of the permits would

not maintain the persistence of listed fish species in the

affected reach and thus imposed conditions on the permits

to maintain fish persistence.” Id. Those conditions included

a statement of ODFW’s recommended persistence flows for

each season, an annual meeting condition for devising a

strategy to use releases from Timothy Lake, and a curtail-

ment condition to address missed persistence flows occur-

ring after the first Monday in September through June 30.

Id. at 198-99. ODFW concurred that the conditions were

consistent with its advice to the department. Id. at 199.

368 WaterWatch of Oregon v. Water Resources Dept.

Both WaterWatch and South Fork protested and

requested a contested case hearing. An administrative

law judge (ALJ) held a hearing and issued three proposed

orders—one for Lake Oswego’s permits, one for North

Clackamas’s permits, and one for South Fork’s permits—

that affirmed the department’s conclusions and recommen-

dations with respect to fish persistence. All parties filed

exceptions to the ALJ’s orders, including the department.

The department ultimately issued final orders (the 2011

final orders) that modified the ALJ’s legal analysis, included

additional findings related to fish persistence, and adopted

the three permit conditions. WaterWatch sought judicial

review.

In WaterWatch I, we construed the fish-persistence

requirement in ORS 537.230(3)(d) and rejected WaterWatch’s

contention that the department had applied a legally incor-

rect interpretation. We address that statutory interpreta-

tion in more detail below. We then turned to WaterWatch’s

argument that the department’s decision was not supported

by substantial evidence or reason. We rejected WaterWatch’s

arguments with respect to specific findings of fact, except

for one. That finding stated, “The short-term drops below

minimum streamflows predicted by [WaterWatch’s expert]

Jonathan Rhodes are not incompatible with maintaining

the persistence of listed fish species.” Id. at 215. We con-

cluded that that finding was not supported by substantial

evidence because nothing in the evidence expressed what

constituted a short-term versus a long-term drop below per-

sistence flows with respect to fish persistence “or why the

flows predicted by Rhodes, which are not identified in the

order, fall within that category.” Id. at 218.

We further concluded that the department’s ulti-

mate determination—that the permits as conditioned will

maintain the persistence of listed fish—lacked substan-

tial reason. Id. We explained that the permit conditions

did not ensure that diversions of the undeveloped portions

of the permit would not contribute to missing the per-

sistence flows. The department’s findings, however, included

that the permits, without conditions, would not main-

tain fish persistence and that, although not meeting the

Cite as 324 Or App 362 (2023) 369

persistence flows on a short-term basis was not necessary

for fish persistence, it was necessary for fish persistence to

meet those flows on a long-term basis. We explained, “The

department failed to connect the dots between its finding

of what is necessary to maintain fish persistence—long-

term meeting of persistence flows—with how the condi-

tions ensure that the diversion of the undeveloped por-

tions of the municipal parties’ permits do not contribute

to the long-term failure to meet persistence flows.” Id. at

223.

On remand, at the department’s request, ODFW

reviewed WaterWatch I and responded with additional

explanation on which its advice was based. We spend some

time describing the contents of ODFW’s response because

it forms the basis for the department’s findings in the 2018

order.

ODFW first explained its general considerations for

fish persistence, fish habitat, and the affected reach in the

Clackamas River. ODFW explained that it looks at fish per-

sistence on a population basis across the entire watershed,

which means that it considers the water withdrawals in the

affected reach in relation to the importance of the affected

reach to the fish population at the different times of year

and with respect to whether streamflow is a limiting factor

for the fish in the affected reach. As to fish habitat, ODFW

explained that there are three life stages to consider—

migration, rearing, and spawning—which require different

habitats at different times of the year depending on the fish

species. As to the affected reach, ODFW explained that the

reach provides a migration corridor for all four fish species

at issue, provides about two to five percent of the basin-wide

spawning habitat for fall Chinook, provides about one to two

percent of rearing habitat in the basin for spring Chinook

and winter Steelhead, and provides about 7.8 percent of

rearing habitat for fall Chinook, but many or most juvenile

fall Chinook likely migrate downstream out of the affected

reach before August.

ODFW then explained that it compared current

river conditions with future conditions. The future con-

ditions were based on a water model prepared by Dr. Rob

370 WaterWatch of Oregon v. Water Resources Dept.

Annear, an expert for the municipal parties. That model,

which is called the Annual Scaled Scenario or Annual

Scaled Model by the parties, provided a “high-end” estimate

of future water use. Using data taken from 2000 to 2014, the

Annual Scaled Scenario took the maximum recorded daily

diversion for each year and scaled it up to the total with-

drawal allowed under the permit and then scaled up the

other days using a ratio based on the diversion for that date.

ODFW explained:

“For example, Lake Oswego has total rights of 59 cfs, of

which 25 cfs are Developed and 34 cfs Undeveloped (Table 2).

If its maximum recorded daily diversion for a given year

was 20 cfs, the Annual Scaled diversion for this day is set

at 59 cfs, and diversions for all other days are scaled up

using the ratio 59/20. A recorded diversion of 15 cfs would

be scaled up to 15 x (59/20) = 44.2 cfs (Figure 1).”

As such, ODFW stated, the Annual Scaled Scenario mimics

the historical pattern of daily water use from 2000 to 2014

and provides an “estimate of the likely effects of full use of

the cities’ water rights in the future and is based on existing

data.” ODFW compared the Annual Scaled Scenario with

the persistence flows for the affected reach and “determined

the percentage of time the [persistence] flows will be missed,

and the magnitude and duration of the shortfall.” That com-

parison allowed “ODFW to make a determination whether

municipal use of the undeveloped portion of the permits will

likely result in short-term or long-term drops below [per-

sistence] flows.”

ODFW then defined what it meant by short-term

or long-term drops below the persistence flows and the pre-

dicted future effect of water withdrawals under the permits.

ODFW stated:

“ODFW’s target flows are not flows that must be con-

stantly met in order to maintain the persistence of the

affected species. Rather, they are flows necessary over the

long term to maintain persistence. The target flows are

based on the understanding that stream flows naturally

exhibit variation both within a given year and from year

to year, and that the affected fish species have adapted to

these variations. A short-term drop below target flows is a

Cite as 324 Or App 362 (2023) 371

drop that allows the population of the affected species to

remain fairly stable over time. A long-term drop below tar-

get flows is a drop that results in either a new normal at a

lower population level or a continued decline in population

level.

“Whether a given drop or set of drops below target flows

constitutes a short-term or a long-term drop has to do

with the frequency and magnitude of the drop, when the

drop occurs and the spatial extent and characteristics of

the reach where the drop occurs. All of these factors deter-

mine the response of the population to drops below target

flows.

“Under the Annual Scaled model water use scenario,

the drops below target flows happen only part of the time

within a given year, do not happen every year, are usually

not a large magnitude (see following section and Table 4),

and occur over a small percentage of basin habitat (Table 1).

For these reasons, ODFW did not consider the projected

drops below target flows resulting from municipal use of

the undeveloped portions of the permits to be ‘long-term’ in

regard to the impact on any populations in the basin.

“However, while the Annual Scaled model scenario

represents a likely maximum use scenario (and therefore

likely overestimates actual use under the fully developed

permits), ODFW also considered that the municipalities

will have the legal right to use the full quantity of water

allowed under the permits if the permits are fully devel-

oped. While such a scenario is unlikely for the reasons

described above, ODFW accounted for it in its advice by

recommending a curtailment condition during certain

parts of the year. In ODFW’s view, the curtailment condi-

tion is necessary in a ‘full permitted use’ scenario to avoid

long-term drops below persistence flows.”

ODFW then provided further explanation why the predicted

streamflow drops below persistence flows constitute a short-

term drop that remains compatible with fish persistence,

given all the general considerations.

Finally, ODFW explained that the three recom-

mended permit conditions would help maintain the per-

sistence of the listed fish species. ODFW first addressed

its recommended curtailment condition, which would apply

372 WaterWatch of Oregon v. Water Resources Dept.

from the day after the first Monday in September through

June 30. That condition would limit the maximum total

amount of the undeveloped portion of the permit that could

be legally diverted in proportion to the amount by which

persistence flows are missed. As a second condition, ODFW

recommended that, for the period from July 1 to the first

Monday in September, when the curtailment condition did

not apply, the municipalities should be required to enact

water conservation measures or curtailment (as provided in

the municipalities’ required plans) on the first occurrence

of a missed flow to reduce the magnitude of the missed

persistence flow. As a third condition, ODFW again recom-

mended a meeting condition for the municipal parties to

meet with ODFW to develop annual strategies for Timothy

Lake releases. ODFW stated that, while not necessary for

fish persistence, if lake releases are shaped and timed cor-

rectly, they could contribute to the health of the fish spe-

cies. In the converse, if timed and shaped incorrectly, such

releases could harm the health of the fish species. ODFW

explained that augmented flows are not most helpful in

the summer months, but if curtailment applied in those

months, the municipalities would be incentivized to call for

augmented flows in those months, and not call for the aug-

mented flows during the times it would be beneficial for fish

species.

In addition to seeking ODFW’s updated advice, the

department determined that it needed additional evidence

and referred the case for a further hearing before an ALJ.

Ultimately, the department identified the following ques-

tions as the scope of issues on remand:

“1. Whether the ODFW distinction between a ‘short-

term drop’ and a ‘long-term drop’ below the target flows is

supported by a preponderance of the evidence.

“2. Whether [the department] can ‘connect the dots’ to

show that the drops below the target flows will continue to

maintain the persistence of the listed fish species.

“3. Whether Dr. Annear’s Annual Scaled water sce-

nario is valid and was appropriately relied upon by ODFW

and [the department].

Cite as 324 Or App 362 (2023) 373

“4. Whether the changes in the annual meeting condi-

tion are supported by a preponderance of the evidence.”4

The ALJ took additional documentary evidence

and testimony at the remand hearing and issued a proposed

order to which all parties, including the department, filed

exceptions. The department ultimately issued its final order

on remand (the 2018 order) which adopted the ALJ’s pro-

posed order with only minor modifications in the findings,

but rejected a modification of permit conditions proposed

by the ALJ. The 2018 order incorporated the 2011 orders

at issue in WaterWatch I and stated that the 2018 order “is

intended to supplement and clarify the 201[1] final orders in

a manner that addresses the bases for the Court of Appeals’

remand. To the extent there is a direct conflict between the

201[1] final orders and this Final Order on Remand, this

Final Order on Remand controls.”

In the 2018 order, the department found that

ODFW’s response was supported by a preponderance of evi-

dence in the record and adopted as its own findings each

section of that response. The department additionally found

that “ODFW concluded that water use under the Annual

Scaled model water use scenario would not result in long-

term drops” for the reasons set out in ODFW’s response,

which reasons the department found “are supported by a

preponderance of evidence in the record and are adopted as

findings of fact.” The department further found that “ODFW

considered both the results of the Annual Scaled model sce-

nario and the possibility that municipalities could legally

use the entirety of the permitted amounts.” (Emphasis in

original.)

The department then recited additional evidence

from the hearing record that supported its adoption of

ODFW’s response as its own findings and also made addi-

tional findings about other evidence in the record, includ-

ing with respect to WaterWatch’s experts. With respect to

the Annual Scaled Scenario, the department set out how

4

The department also identified a fifth issue to address the affect, if any,

of WaterWatch of Oregon v. Water Resources Dept., 259 Or App 717, 316 P3d 330

(2013) (Cottage Grove), on one of the permits. That issue is not before us on judi-

cial review.

374 WaterWatch of Oregon v. Water Resources Dept.

Annear created the scenario, stating that he used water

use data from 2000 to 2014 taken from gauge data and

records of actual withdrawals at the points of diversion and

then scaling up that use “as a projection for future years

when the full permitted amounts would be available.” The

department found that Annear, “used this scale rather than

applying the full permitted amount on a continuous basis

because he was unaware of any municipality that has ever

used its full permitted amount of water around the clock,

seven days per week, and he believed that level of use would

be unrealistic.” The department also found that the Annual

Scaled Scenario “is calibrated for flow, water level, and tem-

perature” and that Annear “modeled temperatures that cor-

related well with the actual river temperatures,” disputing

WaterWatch’s experts’ “hypothesis that withdrawals from

the river always caused water temperatures to rise.” The

department also found that Annear considered the estimate

of future water use to be conservative, because the scenario

did not include that South Fork will not be able to divert

some of its water during low flow periods and per capita

water use has been declining yearly for about 10 years.

With regard to fish persistence, as an additional

finding to those adopted from ODFW’s response, the depart-

ment found that “[t]here is some fish use of the affected

reach of the river probably at all times of year, but fish use

at the low flow times is minimal.”

With respect to WaterWatch’s experts, the depart-

ment found that two experts, John Davies and Jonathan

Rhodes, based their opinions on an assumption that the

municipal parties would continuously use all the water

available under the permits, and a third, Dr. Christopher

Frissell, concluded that any additional water withdrawal

would cause declines in the listed fish populations.

The 2018 order also includes an “opinion” section

discussing the evidence, WaterWatch’s arguments, and the

connection between the department’s findings and conclu-

sions. In that opinion, the department pointed to the evi-

dence and its explanation of the difference between short-

term and long-term drops, as well as the evidence of the

listed fish species timing and type of use of the reach. The

Cite as 324 Or App 362 (2023) 375

department then rejected Rhodes’ opinion because “his

computations [are based] on the assumption that all of the

municipalities will use all of their permitted water rights, all

of the time, the 24/7 assumption.” The department rejected

that assumption as not supported by evidence in the record,

noting that “even Rhodes admitted at [the] hearing that he

had no opinion about whether any municipality had ever

used the full amount of permitted water all of the time.”

The department also addressed our conclusion in

WaterWatch I that the 2011 orders lacked substantial reason,

stating that ODFW “explained the connection between the

fish use of the affected reach and the streamflow changes

that will come with additional withdrawals.” With regard

to the permit conditions, the department concluded that

the curtailment condition that applied between the first

Monday in September through June and the condition for

releases from Timothy Lake were supported by a prepon-

derance of the evidence. The 2018 order states that the cur-

tailment condition was only important for fish persistence if

permit holders “were using close to their maximum permit-

ted amounts almost all of the time.” The department added

in the 2018 order that that was “a water-use scenario which

* * * is not supported by a preponderance of the evidence.”

As to the summer months, the ALJ had suggested

a change to the condition, which the department rejected.

The ALJ recommended that, because of the uncertainty of

the effects of climate change, the summer months should

include a curtailment provision. The department rejected

the ALJ’s proposed condition because it was not supported

by a preponderance of evidence. The department pointed out

that the ALJ found that the summer condition that required

the municipal parties to enact the first stage of their con-

servation plans when the persistence flow is missed, with-

out modification, was sufficient under the evidence, but only

recommended the change because the department “does not

know what the future holds.” The department explained that

that is not a sufficient basis on which to impose conditions.

The department also responded that the curtailment condi-

tion (which applies from September to June) is connected to

the persistence of listed fish “in a limited fashion” because it

376 WaterWatch of Oregon v. Water Resources Dept.

is only “relevant to fish persistence in the unlikely event of

continual use of the full quantity of water allowed under the

permits once the permits are fully developed.”

As to the specific remand questions, the department

concluded that ODFW’s distinction between a short-term

and long-term drop below persistence flows was supported

by a preponderance of the evidence, that it had “connected

the dots” that the drops below persistence flows “will con-

tinue to maintain the persistence of the listed fish species,”

that ODFW and the department appropriately relied on

the Annual Scaled Scenario, and that the changes in the

meeting condition were supported by a preponderance of the

evidence. The department then imposed the three permit

conditions recommended by ODFW on each of the municipal

parties’ permits. WaterWatch now seeks judicial review of

the 2018 order, raising several arguments.

II. CONSTRUCTION OF ORS 537.230(3)(d)

WaterWatch’s challenges on judicial review largely

rise and fall on the department’s reliance on the Annual

Scaled Scenario in making its fish-persistence determina-

tion under ORS 537.230(3)(d). WaterWatch argues both that

the department legally erred in that reliance based on the

statutory requirement and, even if it was not legal error,

that the department’s reliance was not based in substantial

evidence or reason. We first address the question of what the

statute requires.

ORS 537.230(3)(d) provides:

“(3) * * * However, the department may order and allow

an extension of time to complete construction or to perfect

a water right beyond the time specified in the permit under

the following conditions:

“* * * * *

“(d) For the first extension issued after June 29, 2005,

for a permit for municipal use issued before November 2,

1998, the department finds that the undeveloped portion

of the permit is conditioned to maintain, in the portions

of waterways affected by water use under the permit, the

persistence of fish species listed as sensitive, threatened

or endangered under state or federal law. The department

Cite as 324 Or App 362 (2023) 377

shall base its finding on existing data and upon the advice

of the State Department of Fish and Wildlife. An existing

fish protection agreement between the permit holder and

a state or federal agency that includes conditions to main-

tain the persistence of any listed fish species in the affected

portion of the waterway is conclusive for purposes of the

finding.”

The department has interpreted ORS 537.230(3)(d)

in its rules and through its application of the statute in this

case.5 Under OAR 690-315-0080, the department has set out

how it will evaluate the fish-persistence requirement in ORS

537.230(3)(d). That rule provides that the department must

find that “use of the undeveloped portion of the permit will

maintain the persistence of the listed fish species” or if it

will not, that “the undeveloped portion of the permit is con-

ditioned to maintain the persistence of listed fish species.”

OAR 690-315-0080(1)(f)(B), (C). The rule also provides that

the department’s finding “shall be limited to impacts related

to streamflow as a result of use of the undeveloped portion

of the permit and further limited to where, as a result of use

of the undeveloped portion of the permit, ODFW indicates

that streamflow would be a limiting factor for the subject

listed fish species.” OAR 690-315-0080(2). The department

has defined “[u]se of the undeveloped portion of the permit”

to mean “the diversion of the undeveloped portion of a sur-

face water permit.” OAR 690-315-0010(6)(e).

In the 2018 order, the department followed its rules,

and determined that the existing data showed that, once

the permits were fully developed, the municipal parties’ use

of the undeveloped portion of the permits was unlikely to

exceed the forecast in the Annual Scaled Scenario and thus

it was the proper basis from which to initially determine if

use of the undeveloped portion of the permits would affect

fish persistence. The department further determined that

the use predicted under the Annual Scaled Scenario would

maintain the persistence of the listed fish species. But, in

5

On judicial review, South Fork responds to WaterWatch with an interpre-

tation of ORS 537.230(3)(d) that the other municipal parties and the department

have joined. However, South Fork’s proffered interpretation does not precisely

track that of the department, as provided in its rules and the 2018 order. Thus,

we do not separately address South Fork’s argument.

378 WaterWatch of Oregon v. Water Resources Dept.

the event that the municipal parties’ use exceeded that

under the Annual Scaled Scenario, the department deter-

mined that the permit conditions placed on the extensions

would maintain the persistence of the listed fish species.

The thrust of WaterWatch’s argument in its first

assignment of error is that the department did not make a

fish-persistence determination based on permit conditions,

as required by ORS 537.230(3)(d), but instead based its

determination on the projected use under the Annual Scaled

Scenario, a projected use that the municipal parties are not

required to follow and was not made a permit condition. The

problem, WaterWatch argues, is that the statute requires

the department to condition the undeveloped portion of the

permit to maintain fish persistence and that the statutory

requirement cannot be avoided by instead claiming that the

municipal parties will not use the entire undeveloped por-

tion of the permits. WaterWatch asserts that the department

was required to determine fish persistence based on the full

amount of water the municipal parties are legally allowed

to use under the permits. WaterWatch focuses solely on the

phrase “the undeveloped portion of the permit is conditioned

to maintain * * * the persistence of [listed] fish species” and

asserts that the department failed to apply that phrase on

remand as directed in WaterWatch I.

In WaterWatch I, we construed the phrase “is con-

ditioned to maintain * * * the persistence of [listed] fish

species.” We determined that that phrase was an “inexact

term” because it “is a phrase that expresses a complete leg-

islative policy to ensure that further development of munic-

ipal permits will maintain fish persistence,” but was not so

precise that the terms did not require interpretation by the

department. WaterWatch I, 268 Or App at 205; see also id.

(“ ‘Although [inexact terms] embody a complete expression

of legislative meaning, that meaning always may not be

obvious. As to “inexact terms, the task of the agency, and

ultimately of the court, is to determine what the legislature

intended by using those words.” ’ ” (Quoting Coast Security

Mortgage Corp. v. Real Estate Agency, 331 Or 348, 353-54,

15 P3d 29 (2000) (internal citations omitted).). Then, con-

sidering the text in context, and in light of the relevant

Cite as 324 Or App 362 (2023) 379

legislative history, we concluded that, in using that phrase,

“the legislature intended that the undeveloped portions of

the permits be subject to conditions—that is, fulfillment of

the conditions is a prerequisite to diversion of the undevel-

oped portions—that preserve from decline the continued

existence, or endurance of listed fish species.” Id. at 207. We

further explained that the legislature “focused on the long-

term preservation or endurance of fish population health in

the affected waterway.” Id. at 210. We rejected WaterWatch’s

arguments that the department applied a legally incorrect

interpretation of the statute in its 2011 final orders. We

explained:

“The legislative policy of the statute focuses on long-term

fish population health in the affected waterway. It does

not express a policy that no habitat may be impaired or

that no individual fish may be allowed to perish or leave.

The department’s interpretation of the statute contained

in its final orders—that the department is required to con-

dition the permits to maintain long-term population health

of listed fish species—is consistent with the legislature’s

policy.”

Id. at 211. Thus, our remand to the department was not

based on any misunderstanding by the department of the

legal standard in ORS 537.230(3)(d) that it was required to

apply.

Based on that prior construction, WaterWatch is

correct that the statute requires the undeveloped portion

of the permit to be conditioned—a prerequisite that must

be met to divert the undeveloped portion of the permit—

to maintain fish persistence and that the focus must be on

long-term fish population health in the affected waterway.

However, that prior construction, and that phrase in the stat-

ute, does not address the details of how the department (or

ODFW) is to determine whether conditions (or what kind of

conditions) are needed for long-term fish population health.

See WaterWatch I, 268 Or App at 205 (what makes the dis-

puted phrase inexact is that “the agency must use judgment

to determine what conditions it will need to impose on indi-

vidual applications for extensions of time to effect [the legis-

lature’s] complete policy statement”).

380 WaterWatch of Oregon v. Water Resources Dept.

The statute provides additional guidance on that

topic: “The department shall base its finding on exist-

ing data and upon the advice of [ODFW].” As we noted in

WaterWatch I, the department must use judgment to arrive

at its finding that the undeveloped portion of the permit is

conditioned on fish persistence. We note now that the fac-

tual bases for that judgment must be existing data and

the advice of ODFW. Given that context, we understand

WaterWatch to argue that the department’s exercise of judg-

ment in this case was inconsistent with the statute because

the only “existing data” the department can permissibly

consider with respect to streamflow is reflected in a simple

equation: current, or perhaps projected future, streamflow

(absent the diversion of the undeveloped portion of the per-

mit) minus the full amount of the undeveloped portion of the

permit. Because the Annual Scaled Scenario is not part of

that equation, they contend, the department’s reliance on it

is inconsistent with the department’s task as set out in the

statute.

As explained below, we disagree. In OAR 690-315-

0080, the department set forth the methodology for address-

ing its task under ORS 537.230(3)(d), which provides, as

relevant:

“(1) In order to approve an application for an extension

of time for municipal and quasi-municipal water use per-

mits holders to complete construction and/or apply water to

full beneficial use pursuant to ORS 537.230 or 537.630, the

Department shall find:

“* * * * *

“(f) For the first extension issued after June 29, 2005

for municipal water use permits issued before November 2,

1998:

“* * * * *

“(B) It is determined that use of the undeveloped por-

tion of the permit will maintain the persistence of listed

fish species in the portions of waterways affected by water

use under the permit; or

“(C) If it is determined that use of the undeveloped

portion of the permit would not maintain the persistence of

Cite as 324 Or App 362 (2023) 381

listed fish species in the portions of the waterways affected

by water use under the permit, the undeveloped portion of

the permit is conditioned to maintain the persistence of

listed fish species in the portions of the waterways affected

by water use under the permit.

“(2) The Department’s finding for municipal use per-

mits under subsection (1)(f) of this rule shall be based on

existing data and advice of the Oregon Department of Fish

and Wildlife (ODFW). The Department’s finding shall be

limited to impacts related to streamflow as a result of use

of the undeveloped portion of the permit and further lim-

ited to where, as a result of use of the undeveloped portion

of the permit, ODFW indicates that streamflow would be a

limiting factor for the subject listed fish species.

“* * * * *

“(g) The Department may place fishery resource pro-

tection conditions on the undeveloped portion of the permit

in the extension proposed and final order under [OAR] 690-

315-0050 if the Department finds that, without such condi-

tions, use of the undeveloped portion of the permit will not

maintain, in the portions of waterway affected by water

use under the permit, the persistence of listed fish species.”

The department further defined “[u]se of the undeveloped

portion of the permit” to mean “the diversion of the unde-

veloped portion of a surface water permit” and “[p]ortions of

waterways affected by water use under the permit” to mean

“those portions of the drainage basin at or below the point

of diversion for a surface water permit.” OAR 690-315-0010

(6)(e), (f).

Under that rule, the department broke down its

task to first determine whether diversion of the undevel-

oped portion of the permit would or would not maintain the

persistence of the listed fish. And in making that determi-

nation, the department further defined what “existing data”

and “advice” would be considered by providing that its find-

ing “shall be limited to impacts related to streamflow as a

result of use of the undeveloped portion of the permit and

further limited to where, as a result of use of the undevel-

oped portion of the permit, ODFW indicates that streamflow

would be a limiting factor for the subject listed fish species.”

382 WaterWatch of Oregon v. Water Resources Dept.

In the 2018 order, the department clarified its appli-

cation of the rule, by explaining that diversion of the unde-

veloped portion of the permit was the amount of water the

municipalities would use at full permit development, as sup-

ported by a preponderance of evidence in the record. Here,

that was the Annual Scaled Scenario which was based on 15

years of existing data of historical use scaled up to full per-

mit development, a method that captures natural seasonal

variation. The department then used the Annual Scaled

Scenario to determine the “impacts related to streamflow as

a result of the use of the undeveloped portion of the permit.”

OAR 690-315-0080(2).

We are not persuaded that there is anything in the

department’s rule or orders that is contrary to the expressed

legislative policy in ORS 537.230(3)(d). In two prior cases, we

have discussed the legislative policy in that statute. First,

we have concluded that the statute reflects a legislative pol-

icy “to allow municipal users additional time—beyond that

specified in the permit or a previous extension—to perfect

their water right, while at the same time ensuring the pro-

tection of public resources and meaningful public partici-

pation in extension proceedings.” WaterWatch of Oregon,

Inc. v. Water Resources Dept., 259 Or App 717, 741, 316 P3d

330 (2013) (Cottage Grove). Additionally, as discussed in

WaterWatch I, the primary phrase “maintain * * * the per-

sistence of [listed] fish species,” “is a phrase that expresses

a complete legislative policy to ensure that further develop-

ment of municipal permits will maintain fish persistence.”

WaterWatch I, 268 Or App at 205. Further, the legislature

required that the department base its fish-persistence find-

ing on existing data and the advice of ODFW. The depart-

ment’s construction and application of the statute, as dis-

cussed above, is not contrary to those legislative policies.

WaterWatch’s attempt to find in the statute a restric-

tion of data on streamflow to a simple subtraction problem—

current or projected streamflow minus the full amount of

water that could ever be used as a result of the development

of the permit—is unfounded. The statute does not direct the

department to subtract the entire amount of water that rep-

resents the undeveloped portion of the permit from the river

Cite as 324 Or App 362 (2023) 383

and make its determination from there. Rather, the statute

directs the department to base its determination on exist-

ing data and the advice of ODFW. That is a policy direc-

tive to use data currently in existence to determine what is

needed to prevent a future potential harm. It is not contrary

to that legislative policy for the department to use existing

data on water use patterns to determine what future use

will likely be once permits are fully developed so that it can

make a reality-based decision on what is needed to main-

tain fish persistence. The department’s construction and

application of the statute in its OAR and orders in this case

are not inconsistent with the statute. We therefore reject

WaterWatch’s first assignment of error.

III. SUBSTANTIAL EVIDENCE AND

SUBSTANTIAL REASON

In its second, third, and fifth assignments of error,

WaterWatch asserts, for a number of reasons, that the

2018 order is not based on substantial evidence or reason.

Instead of addressing each of those reasons in the scatter-

shot manner in which they are presented by WaterWatch,

we focus our analysis on those areas that the department

was required to address on remand from WaterWatch I. As

explained below, we conclude that the 2018 order, and, in

particular the department’s fish-persistence determination,

is supported by substantial evidence and reason.

A. Standard of Review

We first turn to our standard of review. “Under

ORS 183.482(8)(c), we are required to set aside or remand

the department’s final orders if they are not supported by

substantial evidence.” WaterWatch I, 268 Or App at 212;

ORS 536.075(2), (3) (judicial review of a contested case

order issued by the department is to be conducted according

to ORS 183.482); see also ORS 536.075(9) (“The [Court of

Appeals] may remand the case for further evidence taking,

correction or other necessary action. The court may affirm,

reverse, modify or supplement the order appealed from, and

make such disposition of the case as the court determines

to be appropriate.”). “Substantial evidence exists to sup-

port a finding of fact when the record, viewed as a whole,

384 WaterWatch of Oregon v. Water Resources Dept.

would permit a reasonable person to make that finding.”

ORS 183.482(8)(c). Our review for substantial evidence “does

not entail or permit the reviewing tribunal to reweigh or

to assess the credibility of the evidence that was presented

to the factfinding body.” Tigard Sand and Gravel, Inc. v.

Clackamas County, 151 Or App 16, 20, 949 P2d 1225 (1997),

rev den, 327 Or 83 (1998). As part of our substantial evi-

dence review, “we [also] look at whether the findings provide

‘substantial reason’ to support the legal conclusion reached

by the agency.” Warkentin v. Employment Dept., 245 Or App

128, 134, 261 P3d 72 (2011).

B. Short-Term Versus Long-Terms Drops in Persistence Flows

In WaterWatch I, we identified as a significant fail-

ing in the 2011 orders that the department did not provide

evidence or explain the difference between a short-term drop

versus a long-term drop in persistence flows with respect to

fish persistence. That failure was the basis for our conclu-

sion that the single finding—“[t]he short-term drops below

minimum streamflows predicted by Jonathan Rhodes are

not incompatible with maintaining the persistence of listed

fish species”—was not supported by substantial evidence.

WaterWatch I, 268 Or App at 218. That failure was also a

basis for our conclusion that the department’s ultimate fish-

persistence determination lacked substantial reason. Id. at

223. We explained that “the department [had] in its [2011]

final order glosse[d] over the dispute about when missing

the persistence-flow minimums adversely affects the per-

sistence of the listed fish populations. Is it strictly a dura-

tional flow issue or is it related to severity as well? Is miss-

ing persistence flows from July through early October in

perpetuity a short-term or long-term drop?” Id. at 222.

In one of the subparts to its second assignment of

error, WaterWatch asserts that the department failed to

properly address that remand issue. WaterWatch argues

that the definitions provided in the 2018 order for short-term

and long-term drops are circular and too vague to ensure

that the permit conditions will ensure the persistence of the

listed fish species. Specifically, WaterWatch argues that the

department does not explain what is meant by “fairly stable

Cite as 324 Or App 362 (2023) 385

over time,” a drop to a “new normal,” or a “continued decline

in population level,” nor does it define the extent of the mag-

nitude, frequency, or timing of a drop that would constitute

a short-term versus a long-term drop.

For reference, a substantial portion of the discussion

in ODFW’s advice, which was adopted by the department in

the 2018 order, is set out above, 324 Or App 370-71, and

we do not repeat it here. We conclude that substantial evi-

dence and reason supports the department’s findings about

short-term versus long-term drops in relation to the fish-

persistence determination in this case. In the 2018 order,

the department supplied the evidence and reasoning that

was missing in the 2011 orders.

In the 2018 order, the department explained the fac-

tors for determining whether missed persistence flows con-

stitute short-term or long-term drops. Those factors are not

circular or impermissibly vague, but rather are grounded

in how the listed fish species—on a watershed, population

basis—use the affected reach and the effect of water with-

drawal of the undeveloped portion of the permits on that

use. That includes looking at the “frequency and magnitude

of the drop, when the drop occurs and the spatial extent and

characteristics of the reach where the drop occurs.” Those

factors specifically interplay with the explanations about

when the listed fish species use the affected reach, what

they use it for, and for how much of the population that use

is important.

Applying those factors, the department found that,

“[u]nder the Annual Scaled model water use scenario, the

drops below target flows happen only part of the time within

a given year, do not happen every year, are usually not a

large magnitude * * *, and occur over a small percentage of

basin habitat * * *.” As a result, the department “did not con-

sider the projected drops below target flows resulting from

municipal use of the undeveloped portions of the permits to

be ‘long-term’ in regard to the impact on any populations in

the basin.” However, accounting for the fact that the munic-

ipalities legally could use the full quantity of water under

their permits, although such use was unlikely, the depart-

ment adopted ODFW’s recommended curtailment condition

386 WaterWatch of Oregon v. Water Resources Dept.

because such a condition was necessary to avoid long-term

drops in persistence flows if such water use occurred.

WaterWatch does not explain how those findings

are lacking in substantial evidence and instead argues that

the explanation uses imprecise words for its factors or circu-

lar logic in defining short-term versus long-term. However,

the department’s logic is not circular, and our remand in

WaterWatch I never required such precision. What we con-

cluded was missing in the 2011 final orders was an expla-

nation that connected the findings about fish persistence

with the conclusion that the permits as conditioned would

not contribute to a long-term drop below persistence flows.

The department has now provided that necessary explana-

tion. The department was not required to come up with for-

mulaic definitions of short-term and long-term drops that

could be applied in the abstract to other affected reaches

or municipal permits or to provide precise triggering num-

bers for when a short-term drop becomes a long-term drop.

It was required to explain what it meant in using those

terms in the circumstances of this case with respect to the

fish-persistence determination in this case. In the context of

the whole record, which is how we are required to view the

issue, the department has supplied the necessary substan-

tial evidence and reason with respect to short-term versus

long-term drops that WaterWatch I found missing.

Relatedly, we also reject WaterWatch’s argument

that the department’s finding about Rhodes’s opinion that we

remanded in WaterWatch I is not supported by substantial

evidence. On remand, the department adequately addressed

the difference between short-term and long-term drops and

found that Rhodes’ analysis, which he had amended for

the remand hearing, was based on an assumption about

water use that was unsupported by the evidence. Primarily,

WaterWatch’s complaint is that the department did not

accept Rhodes’s analysis, which rejects many aspects of the

department’s analysis. It is not our role, on judicial review,

to reweigh expert evidence offered at a contested case hear-

ing. Our role is to determine whether the department could

weigh the evidence as it did. Kniss v. PERB, 184 Or App 47,

52, 55 P3d 526 (2002). On this record, we conclude that the

department could reasonably weigh the expert evidence as it

Cite as 324 Or App 362 (2023) 387

did and that substantial evidence supports the findings that

WaterWatch challenges.6 See also WaterWatch I, 268 Or App

at 217-18 (concluding that similar findings in the 2011 final

orders were supported by substantial evidence).

C. Curtailment Condition

WaterWatch also argues in its second assignment of

error that, in the 2018 order, the department has “function-

ally” eliminated the curtailment condition as a permit con-

dition. As we understand it, WaterWatch is arguing that, by

stating that the curtailment condition is a fish-persistence

condition “in a limited fashion” because it is only necessary

“in the unlikely event of continual use of the full quantity of

water allowed under the permits once the permits are fully

developed,” the department changed the condition so that it

cannot be triggered unless the municipalities continuously

use the full quantity of water. WaterWatch’s reading of the

2018 order and curtailment condition is unreasonable. The

department clearly explained that the curtailment condi-

tion is necessary for fish-persistence in the event that the

municipalities use the full amount of water under their per-

mits, and not according to the expected use as modeled by

the Annual Scaled Scenario. That explanation of how the

curtailment condition is connected to fish persistence does

not change, at all, the wording of the condition or how it is

triggered or applied, which is set out in Appendix C of the

2018 order. WaterWatch does not explain how the depart-

ment’s findings and conclusions lack substantial evidence or

reason, and we conclude that they are not so lacking.

Relatedly, we also reject WaterWatch’s argument

that the curtailment condition will not mitigate long-term

drops below persistence flows. As in WaterWatch I, 268 Or

App at 217-18, WaterWatch does not engage with the whole

record and relies solely on its own expert’s analysis. Here,

relying on Annear and ODFW’s experts, the department

concluded that the curtailment condition was not needed to

maintain the persistence of the listed fish species based on

the reasonable forecast of water use under the Annual Scaled

6

WaterWatch broadly challenges the department’s findings and opinion in

the 2018 order with respect to fish use of the reach during the low flow season,

including findings 13, 15, 18, 32, 34, 36, 37, and 38.

388 WaterWatch of Oregon v. Water Resources Dept.

Scenario. Instead, the department concluded the condition

was necessary in the “unlikely event” that the municipal

parties instead used the full amount of water available to

them at all times. We will not reweigh the experts’ opinions

as it is not our role, and the department reasonably could

weigh the evidence as it did to conclude that the curtailment

condition was only necessary to mitigate unlikely long-term

drops caused by the municipal parties’ water use, and that

it would mitigate those drops.

D. Fish-Persistence Determination

We turn to WaterWatch’s third assignment of error,

in which it raises a substantial evidence and reason chal-

lenge to the department’s fish-persistence determination,

which is based on WaterWatch’s assertion that the Annual

Scaled Scenario is not supported by substantial evidence

and that the department fails to explain why the Annual

Scaled Scenario meets the fish-persistence standard. We

address each of WaterWatch’s assertions in turn.

WaterWatch first argues that, “[b]ecause presumed

water use under the Scenario is dramatically lower than

that allowed by permit condition, the Scenario cannot pro-

vide substantial evidence to support the required fish per-

sistence determination.” That argument is another way of

saying that the department could not legally rely on the

type of data that the Annual Scaled Scenario presents. We

have already rejected that argument and do so again here.

WaterWatch next argues that the 2018 order cites

no evidence in support of the Annual Scaled Scenario or

the assumptions on which it is based. WaterWatch further

asserts that there is evidence in the record that refutes those

assumptions, because the evidence shows that the munici-

pal parties would make use of the water under the permits

in ways not accounted for by the Scenario, the Scenario does

not account for usage changes brought on by climate change,

and demand projections for some permit holders already

exceed the amount available under the permits.

It would not benefit the bench, bar, or the parties to

reiterate what is in the lengthy 2018 order, the most salient

parts of which are related above. We have reviewed the

Cite as 324 Or App 362 (2023) 389

relevant parts of the record, ODFW’s advice, and the 2018

order and conclude that the department’s findings about,

and use of, the Annual Scaled Scenario are supported by

substantial evidence. To determine the reasonableness of

the scenario, the department explicitly relied on the testi-

mony of Annear about the assumptions used, the full model

report, and explicitly rejected the testimony of WaterWatch’s

experts that relied on an assumption of water use that the

department found was unrealistic and not supported by the

evidence. The things WaterWatch points to as undercut-

ting the assumptions of the Annual Scaled Scenario were

all either (1) accounted for in some manner by the Annual

Scaled Scenario because it captures 15 years of historical

use data, (2) accounted for by the department in the 2018

order in making its determination, or (3) merely specula-

tive statements about possible future conditions. We again

decline WaterWatch’s attempts to have us weigh the evi-

dence in place of the department; that is not our role. The

Annual Scaled Scenario is the type of reasonable evidence

on which the department is entitled to rely for its fish-

persistence determination. As noted by the department in the

2018 order, WaterWatch’s arguments are primarily based on

its legal position, which we have rejected, that the required

assumption was full use of the permitted rights at all times.

Finally, WaterWatch argues that the department’s

fish-persistence determination is not supported by sub-

stantial evidence or reason, because its conclusion that the

Annual Scaled Scenario results in only short-term drops

below persistence flows does not apply the factors for short-

term versus long-term drops and does not cite supporting

data or explain why the identified drops are consistent with

fish persistence.

We reject WaterWatch’s arguments primarily because

they fail to engage with what the department found and

explained in the 2018 order. The department explicitly

applied and explained its application of the short-term

verses long-term drop factors to the forecasted use under

the Annual Scaled Scenario to determine that that use

would maintain the persistence of the listed fish species.

The “limiting factor” analysis that WaterWatch points out as

390 WaterWatch of Oregon v. Water Resources Dept.

irrelevant to the issue does not appear to have factored into

the department’s determination, as that analysis focuses on

when low flows occur relative to the use the listed fish species

make of the affected reach at that time. In making its argu-

ments, WaterWatch focuses on a couple of findings in the

2018 order as inadequate, while ignoring the other findings

and discussion that further support the department’s fish-

persistence determination. Moreover, in adopting the cur-

tailment condition as part of its fish-persistence determina-

tion, the department was taking into consideration the possi-

bility that future water use could exceed the Annual Scaled

Scenario. We conclude that the department adequately “con-

nected the dots” between its findings and its fish-persistence

determination that the undeveloped portions of the permits

are conditioned to maintain the persistence of the listed fish

species.

E. Remaining Substantial Evidence and Reason Arguments

Having disposed of the major challenges to the

department’s fish-persistence determination, we return to

WaterWatch’s remaining arguments in its second and fifth

assignments of error.

First, we reject, without further discussion, those argu-

ments made by WaterWatch which have not been sufficiently

developed for our review, which includes (1) WaterWatch’s

broad objections without further argument to various state-

ments or findings in the 2018 order, (2) WaterWatch’s argu-

ment that the department failed to address WaterWatch’s

exceptions in the 2018 order, and (3) WaterWatch’s argument

that the department did not focus on the affected portion of

the water way for its fish-persistence finding.

Second, we reject WaterWatch’s argument that the

department improperly shifted a burden of proof to it on

remand. WaterWatch’s argument is inappropriately pre-

sented in its second assignment of error, as it is not an argu-

ment about substantial evidence or reason. Nonetheless, the

department did not misunderstand any evidentiary burdens

when it stated that WaterWatch had the burden to present

evidence to support its expert’s assumptions about water

use. WaterWatch’s arguments rely solely on its assertion

Cite as 324 Or App 362 (2023) 391

that the department legally erred in considering the Annual

Scaled Scenario. We have already rejected that assertion.

Third, we also reject WaterWatch’s argument that

the department’s findings on stream temperature—findings

25 and 26—are not supported by substantial evidence or

reason. Having reviewed the relevant portions of the record,

we conclude that those findings are supported by substan-

tial evidence and reason.

Finally, we reject WaterWatch’s fifth assignment, in

which WaterWatch challenges the department’s deletion of

the ALJ’s recommended curtailment condition for the sum-

mer months as lacking substantial evidence. WaterWatch

also summarily states that the department’s climate change

conclusions are not supported by substantial evidence.

There is an initial problem with WaterWatch’s argu-

ment. The summer curtailment condition recommended

by the ALJ was not a finding of historical fact, nor a legal

conclusion by the ALJ; it was merely a suggestion based on

future uncertainty. The department rejected the ALJ’s sug-

gested additional condition because it was not supported by

a preponderance of evidence in the record and was instead

based on speculation. The department also explained that

the existing evidence on climate change was that the river

could have lower flows and higher temperatures in July and

August, which would have little effect on the listed species

because, during those months, “the evidence in the record

indicates that [the listed fish species] are not now nor will be

in the future using the Affected Reach to maintain the per-

sistence of their populations.” Those findings are supported

by substantial evidence in the record.

IV. COMPLIANCE WITH ORS 183.470(2)

In its fourth assignment of error, WaterWatch

requests that we remand the 2018 final order because it

fails to comply with ORS 183.470(2)7 because it does not con-

tain concise findings and does not apply ORS 537.230(3)(d)

7

ORS 183.470(2) provides, “In a contested case * * * [a] final order shall be

accompanied by findings of fact and conclusions of law. The findings of fact shall

consist of a concise statement of the underlying facts supporting the findings as

to each contested issue of fact and as to each ultimate fact required to support the

agency’s order.”

392 WaterWatch of Oregon v. Water Resources Dept.

to the facts. WaterWatch further argues that the recitals

and quotes of the evidence in the 2018 order are not appro-

priate findings, pointing specifically to findings 1 through

19, 23 through 28, 31 through 33, 35, and 36. We reject those

arguments.

The department made the findings necessary to

support its fish-persistence determination in this case and

they are sufficiently concise to for readers to understand the

department’s findings and conclusions. Where the depart-

ment quoted evidence—primarily the ODFW response—it

did so explicitly because it was adopting the quoted mate-

rial as its own findings that were supported by a preponder-

ance of the evidence in the record. The department explicitly

identified other quotes as recitations from the procedural

history of the case and descriptions of the evidence that fur-

ther supported its adopted findings from ODFW’s response.

Particularly under the circumstances here, where the

department is required to base its fish-persistence determi-

nation on existing data and the advice of ODFW, the depart-

ment’s incorporating that advice and providing the support-

ing evidence as part of its order was appropriate. Cf. Marbet

v. Portland Gen. Elect., 277 Or 447, 469 n 18, 561 P2d 154

(1977) (findings that only stated that “PGE testified” or “the

staff believes” or “the staff has concluded” were not proper

findings of the agency as required by law); see also Western

States Petroleum Assn. v. EQC, 296 Or App 298, 313, 439

P3d 459 (2019) (“Nothing in Marbet, however, prevents EQC

from incorporating DEQ’s evaluation into its own evaluation

when undertaking its work.”). Also, as we concluded above,

the department did properly apply the law to the facts in

this case.

In sum, the department’s construction and appli-

cation of ORS 537.230(3)(d) are consistent with the legis-

lature’s expressed policy, and the department’s 2018 final

order is supported by substantial evidence and substantial

reason.

Affirmed.