Or. Admin. R. 635-412-0020

Current through Register Vol. 63, No. 5, May 1, 2024

Section 635-412-0020 - Fish Passage Approval

(1) No artificial obstruction may be constructed or maintained across any waters of this state that are inhabited, or were historically inhabited, by native migratory fish without providing passage for native migratory fish.

(2) Prior to a trigger, an owner or operator of an artificial obstruction shall obtain a determination from the Department as to whether native migratory fish are or were historically present in the waters of this state where the artificial obstruction is located, unless the owner or operator assumes the presence of native migratory fish.

(3) If the Department determines, or the owner or operator assumes, that native migratory fish are or were historically present in the waters of this state where the artificial obstruction is located, prior to a trigger the owner or operator of the artificial obstruction shall either:

(a) Obtain Department approval of a fish passage plan that meets the requirements of OAR 635-412-0035 for the specific artificial obstruction;

(b) Obtain Department programmatic approval of a fish passage plan for multiple artificial obstructions of the same type. The Department may also grant programmatic approval to an agent for multiple owners or operators of artificial obstructions of the same type. Programmatic approvals are only valid so long as the owner or operator complies with the conditions of the programmatic approval. The Department shall only provide programmatic approval if:

(A) Fish passage structures placed subject to the programmatic approval meet and adhere to criteria determined by the Department;

(B) The owner, operator, or agent demonstrates, as determined by the Department, prior experience providing or approving acceptable fish passage structures;

(C) The owner, operator, or agent reports installation information annually to the Department, including but not limited to the location and installation date of all fish passage structures placed under the programmatic approval;

(D) The owner or operator allows, or the agent requires owners or operators to allow, the Department to inspect fish passage structures subject to the programmatic approval at reasonable times; and

(E) The owner, operator, or agent agrees to expeditiously remedy all fish passage structures subject to the programmatic approval which the Department finds do not meet the applicable criteria or conditions of that programmatic approval.

(c) Pursuant to ORS 527.710(6), install and maintain road-stream crossing structures on non-federal forestlands in compliance with State Board of Forestry, through the Oregon Department of Forestry, rules and guidelines that the Department concurs meet the purposes of the Department's fish passage program; or

(d) Obtain an exemption from fish passage requirements for the artificial obstruction as provided in OAR 635-412-0025.

(4) Fish passage plans shall provide for and be implemented such that fish passage is installed at the artificial obstruction prior to completion of or by the end of the same in-water work period as the action which triggered fish passage requirements under subsection (2) of this rule unless:

(a) An owner or operator demonstrates to the Department an imminent or immediate threat to human safety exists which requires construction at a failed artificial obstruction prior to being able to complete the requirements of subsection (3), and the Department approves a fish passage plan in which the requirements of subsection (3) shall be met by the end of the next in-water work period or as soon as practicable as determined by the Department(providing passage at the time of construction is preferred);

(b) The Department or Commission finds additional time is necessary and appropriate given the size and scope of the project;

(c) Installation begins within the same in-water work period as the action that triggered fish passage and the Department finds that additional time to complete installation is necessary and appropriate given the size and scope of the project; or

(d) The Department finds that additional time is necessary and appropriate given the terms and conditions of a negotiated settlement for a federal proceeding or to ensure coordination with other federal requirements.

Or. Admin. R. 635-412-0020

DFW 23-2003, f. & cert. ef. 3-26-03; DFW 2-2006, f. & cert. ef. 1-9-06; DFW 154-2022, amend filed 12/19/2022, effective 1/1/2023

Statutory/Other Authority: ORS 496.138 & ORS 509.585

Statutes/Other Implemented: ORS 496.012 & ORS 509.585