Section 315.138 - Screening devices, by-pass devices or fishways; rules(1) There shall be allowed a credit against tax due under ORS chapter 316, or if the taxpayer is a corporation, under ORS chapter 317, for taxpayers that install screening devices, by-pass devices or fishways, pursuant to ORS 498.306 or 509.585, and the diversion is not part of a hydroelectric project required to be licensed under the Federal Energy Regulatory Commission. Except as allowed in subsection (4) of this section, the credit shall be taken in the tax year in which the final certification is issued under subsection (10) of this section.(2) The credit shall be equal to 50 percent of the taxpayer's net certified costs of installing a screening device, by-pass device or fishway. The total credit allowed may not exceed $5,000 per device installed.(3) The credit allowed in any one year may not exceed the tax liability of the taxpayer.(4) Any tax credit otherwise allowable under this section which is not used by the taxpayer in a particular tax year may be carried forward and offset against the taxpayer's tax liability for the next succeeding tax year. Any credit remaining unused in such next succeeding tax year may be carried forward and used in the second succeeding tax year. Any credit remaining unused in such second succeeding tax year may be carried forward and used in the third succeeding tax year. Any credit remaining unused in such third succeeding tax year may be carried forward and used in the fourth succeeding tax year. Any credit remaining unused in such fourth succeeding tax year may be carried forward and used in the fifth succeeding tax year, but may not be used in any tax year thereafter.(5) The credit provided by this section shall be in addition to and not in lieu of any depreciation or amortization deduction to which the taxpayer otherwise may be entitled with respect to the installation of a screening device, by-pass device or fishway. The taxpayer's adjusted basis for determining gain or loss may not be further decreased by any tax credits allowed under this section.(6) In the case of a credit allowed under this section for purposes of ORS chapter 316: (a) A nonresident shall be allowed the credit in the same manner and subject to the same limitations as a resident. However, the credit shall be prorated using the proportion provided in ORS 316.117.(b) If a change in the tax year of a taxpayer occurs as described in ORS 314.085, or if the Department of Revenue terminates the taxpayer's tax year under ORS 314.440, the credit allowed by this section shall be prorated or computed in a manner consistent with ORS 314.085.(c) If a change in the status of a taxpayer from resident to nonresident or from nonresident to resident occurs, the credit allowed by this section shall be determined in a manner consistent with ORS 316.117.(7) To qualify for the credit the taxpayer must be issued a certificate by the State Department of Fish and Wildlife.(8) To obtain credit under subsection (1) of this section, any person proposing to apply for certification of a screening device, by-pass device or fishway, before installing the screening device, by-pass device or fishway, shall file a request for preliminary certification with the State Department of Fish and Wildlife. The request shall be in a form prescribed by the State Department of Fish and Wildlife. The following conditions shall apply: (a) Within 30 days of the receipt of a request for preliminary certification, the State Department of Fish and Wildlife may require, as a condition precedent to issuance of a preliminary certificate of approval, the submission of plans and specifications. After examination thereof, the State Department of Fish and Wildlife may request corrections and revisions to the plans and specifications. The State Department of Fish and Wildlife may also require any pertinent information necessary to determine whether the proposed screening device, by-pass device or fishway is in accordance with State Department of Fish and Wildlife requirements.(b) If the State Department of Fish and Wildlife determines that the proposed screening device, by-pass device or fishway is in accordance with State Department of Fish and Wildlife requirements, it shall issue a preliminary certificate approving the screening device, by-pass device or fishway. If the State Department of Fish and Wildlife determines that the screening device, by-pass device or fishway does not comply with State Department of Fish and Wildlife requirements, the State Department of Fish and Wildlife shall issue an order denying certification.(c) If within 90 days of the receipt of plans, specifications or any subsequently requested revisions or corrections to the plans and specifications or any other information required pursuant to this section, the State Department of Fish and Wildlife fails to issue a preliminary certificate of approval and the State Department of Fish and Wildlife fails to issue an order denying certification, the preliminary certificate shall be considered to have been issued. The capital investment must comply with the plans, specifications and any corrections or revisions thereto, if any, previously submitted.(d) Within 30 days from the date of mailing of the order, any person against whom an order is directed pursuant to paragraph (b) of this subsection may demand a hearing. The demand shall be in writing, shall state the grounds for hearing and shall be mailed to the State Fish and Wildlife Director. The hearing shall be conducted in accordance with the applicable provisions of ORS chapter 183.(9) A screening device, by-pass device or fishway that is installed by the State Department of Fish and Wildlife pursuant to ORS 498.306 (8) in response to noncompliance by the person responsible for the water diversion is not eligible for the credit provided in subsection (1) of this section.(10) Upon completion and pursuant to application for final certification, final certification shall be issued by the State Department of Fish and Wildlife if the screening device, by-pass device or fishway was constructed and installed in accordance with State Department of Fish and Wildlife requirements. Final certification shall include a statement of the costs of installation as verified by the State Department of Fish and Wildlife. The credit allowed under this section shall be claimed first for the tax year of the taxpayer in which final certification is issued.(11) The State Department of Fish and Wildlife shall provide information to the Department of Revenue about all certifications issued under this section, if required by ORS 315.058.(12) The State Fish and Wildlife Director may order the suspension or revocation of a certification issued under this section, as provided in ORS 315.061, for the reasons set forth in ORS 315.061 or if the holder of the certificate fails to meet State Department of Fish and Wildlife requirements.(13) In the event that the screening device, by-pass device or fishway is destroyed by flood, natural disaster or act of God before all of the credit has been used, the taxpayer may nevertheless claim the credit as if no destruction had taken place.(14) Screening devices, by-pass devices or fishways that are financed by funds obtained from the Water Development Fund, pursuant to ORS 541.700 to 541.855, are not eligible for the credit under any circumstances.(15) The State Department of Fish and Wildlife shall adopt rules for carrying out the provisions of this section and report to the interim committee created under ORS 171.605 to 171.640 to make studies of and inquiries into state revenue matters.Amended by 2019 Ch. 483, § 19, eff. 9/29/2019.1993 c.730 §12 (enacted in lieu of 316.139 and 317.145); 2001 c.923 §5; 2007 c. 625, § 2 Section 11, chapter 913, Oregon Laws 2009, provides:
Sec. 11. The State Department of Fish and Wildlife may not issue a preliminary certificate of approval under ORS 315.138 after January 1, 2030. [2009 c. 913, § 11; 2011 c. 730, § 18a; 2017 c. 610, § 34; 2023 c. 490, § 1]