dissenting.
Those who would hail this case as a victory for the environment are sadly mistaken. In fact, its net effect is to prevent the city from implementing a project that would correct the current, degraded condition of the Klamath River.
The majority opinion provides only a few of the relevant facts. I will provide the rest of them. This case began when the city submitted to the Federal Energy Regulatory *381Commission (FERC) an application for a license for a hydroelectric project that included a low dam and a small reservoir. DEQ issued a Section 401 certification for the project, and FERC issued an Environmental Impact Statement (EIS). The EIS concluded that an alternative plan, which it termed the “No-Dam Alternative,” was a more environmentally sound approach to the project. That alternative required neither the construction of a dam nor the creation of a reservoir. Instead, it would intercept water discharged from an existing upstream hydro-electric facility (the Boyle project) before the water reentered the river. The water would be transported through tunnels to a new powerhouse and then returned to the river. The EIS recommended that FERC license the “No-Dam Alternative.” DEQ decided that new Section 401 certification was required for the alternative plan, so the city applied to DEQ for that certification. DEQ denied the application on the sole ground that the alternative project would violate the temperature standards contained in OAR 340-41-965(2)(b)(A).
The parties agree that the alternative project, which is also known as the Salt Caves powerhouse, will affect the river’s temperature. They disagree over whether the impact results in a violation of the temperature standards contained in the administrative rule. To my mind, the following facts give clear direction as to which party is correct.
The existing Boyle dam and powerhouse operate in a “peaking” mode. As a result, there are dramatic fluctuations in the flow of water downstream of the powerhouse. The fluctuations are bad for the river and its inhabitants. The Salt Caves powerhouse would virtually eliminate those fluctuations and would maintain the river at a flow level of 350-400 cubic feet per second — a level that is understood to be the most desirable for the native trout population. Elimination of the fluctuating flow would affect current temperature patterns, which are tied to the flow fluctuations. The Salt Caves project would not increase water temperatures by discharging heated water into the river. Rather, the “increases” would be the result of leveling the dramatic and unnatural fluctuations in water flow that occur because of the Boyle powerhouse. The water would not get as cold in the winter and would not get as hot in the summer. As a result, the post-*382project water temperatures would be more than .5 degrees higher in the winter than they are now. The reduction of the current downward fluctuation in the winter water temperature is the basis of EQC’s determination that the project violates the temperature standard and cannot be certified.
In sum, the Salt Caves project would eliminate the dramatic fluctuations in water flows and temperatures and would help return the river to its more natural condition. The EIS said that the project would be a benefit to the river. EQC specifically found that the project would not be adverse to the fish. Nonetheless, by strictly applying the terms of OAR 340-41-965(2)(b)(A), which disallows temperature increases of greater than .5 degrees, EQC concluded that the project was not in compliance with that rule and denied certification. As a result, the city now finds itself with an original dam project that was certified, and a more environmentally beneficial no-dam project that has been denied certification because it ameliorates the current, detrimental conditions on the Klamath River. The main reason why the no-dam alternative is preferred has been transformed into the sole reason why EQC is denying certification.
EQC seems to have been overly impressed by the fact that the administrative rule contains numbers. It opined that “the temperature standard is absolute as a matter of law. That is, the standard is violated by an increase exceeding the prescribed numeric criterion; no additional showing of adverse impact * * * is required.” (Emphasis supplied.) By deciding that the rule establishes “absolute” numeric criteria, the agency was able to find a technical violation. Yet its own opinion, which rests on the assumption that violations of water quality standards have an “adverse impact,” fails to acknowledge that, in this case, there is no adverse impact at all. Here, the temperature “variation” (which, it must be remembered, would actually return the river to its more natural state) exceeds the number specified in the regulation, but actually improves the condition of the river.
The law — and that includes the Oregon Administrative Rules — does not exist in a vacuum. It has meaning only when it is applied to facts. Here, a hyper-technical, bureaucratic application of the administrative rule nets a result that is the opposite of that which was intended by the rule: the *383protection of fish. It is obvious that when OAR 340-41-965 (2)(b)(A) was promulgated, no one was thinking about how a project might improve a degraded river by leveling its fluctuating flows and temperatures.
The facts in this case cry out for a wise and just application of the spirit of the rule. This is not a novel concept. It has long been understood that
“a thing may be within the letter of the statute and yet not within the statute, because [it is] not within its spirit, nor within the intention of its makers. * * * [Frequently words of general meaning are used in a statute, words broad enough to include [the] act in question, and yet a consideration of * * * the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.” Holy Trinity Church v. United States, 143 US 457, 459, 12 S Ct 511, 36 L Ed 226 (1892).
Nothing compelled EQC to interpret its regulation to reach an absurd result, and nothing compels this court to affirm that result.
Accordingly, I dissent.