Or. Admin. R. 635-412-0040

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

Section 635-412-0040 - Mitigation Criteria

(1) Mitigation shall not be allowed for artificial obstructions located in, or which would prevent access to, "Habitat Category 1" habitat for native migratory fish as described in OAR 635-415-0025(1).

(2) Mitigation options include:

(a) Providing fish passage at another pre-existing artificial obstruction which is not required to address fish passage under OAR 635-412-0015 or 635-412-0020;

(b) Restoration or enhancement of native migratory fish habitat;

(c) Implementing measures that directly increase naturally-produced native migratory fish populations, especially sensitive or state or federally listed species through implementation of fish management measures; and

(d) Implementation of other actions specifically approved by the Commission or Department.

(3) Mitigation shall not include any activity that is a requirement or condition of any other agreement, law, permit, or authorization except if it is also for fish passage mitigation of the same action at the artificial obstruction for a different level of government.

(4) Unless a fish passage waiver for a site has already been obtained and mitigation has been provided, mitigation activities shall not be completed prior to a decision regarding a fish passage waiver.

(5) The Department shall approve final mitigation plans, including designs as applicable, in writing prior to implementation.

NOTE: Mitigation actions/measures/activities or concepts, absent specific designs, can be approved at the time a waiver decision is made.

(6) Mitigation actions that provide fish passage shall meet the fish passage criteria contained in OAR 635-412-0035.

(7) The Commission or Department may require the posting of a bond or other financial instrument to cover the cost of mitigation actions or providing fish passage at the artificial obstruction if implementation of the mitigation action or providing fish passage does not achieve its goals.

(8) An owner or operator of an artificial obstruction is responsible for maintaining, monitoring, evaluating the effectiveness of, and reporting on mitigation.

(9) Mitigation:

(a) Shall be conducted in-proximity to the artificial obstruction, with respect to geographic scope;

(b) Shall have habitat type and quality which is more beneficial than that affected by the artificial obstruction, if mitigation is passage into, restoration of, or enhancement of habitat;

(c) Shall at least benefit the same native migratory fish species affected at the artificial obstruction;

(d) Shall have a clear benefit for those native migratory fish species affected at the artificial obstruction if their status is listed as "threatened" or "endangered" under the state or federal Endangered Species Act;

(e) Shall have standards for monitoring and evaluating, and include adaptive management approved by the Department, that assure that the goal of the mitigation is achieved and maintained, and which are detailed in the agreement required in OAR 635-412-0025(9);

(f) Shall be considered if the owner or operator of the artificial obstruction believes the feasibility of fish passage at the artificial obstruction is less than that for mitigation;

(g) Shall attempt to restore or enhance historic conditions;

(h) To the extent possible, shall be consistent with existing native migratory fish or watershed management plans;

(i) May qualify for financial incentives or grants issued by the Department. The Department will not factor into its written benefit analysis the owner's or operator's cost for mitigation or fish passage at an artificial obstruction, nor any financial incentives or grants issued by the Department;

(j) Shall be consistent with the purpose and goals of the Oregon Plan.

(10) The Department or Commission, as applicable, in determining the sufficiency of proposed mitigation:

(a) May require quantification of baseline conditions before a decision regarding a fish passage waiver is made in situations with no existing information, which require recent of updated information, or situations which have no clear benefit to native migratory fish species;

(b) May require data collection and evaluation as directed by the Department, by the owner or operator before a decision regarding a fish passage waiver is made in situations with no existing information, which require recent information, or which have no clear benefit;

(c) Shall consider the extent to which the proposed mitigation is likely to occur independent of a fish passage waiver; and

(d) Shall consider actions that anticipate the expected effects of climate change, which may include but is not limited to effects to streamflows, water temperatures, sediment transport, fish passage facility performance, biological responses, risk and uncertainty, and the importance of protecting and restoring habitat for native migratory fish.

Or. Admin. R. 635-412-0040

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