Or. Admin. R. 635-412-0005 - Definitions
(1) For the
purposes of OAR 635-412-0010 through 635-412-0040 the following definitions
shall apply.
(2) "Active channel
width" means the stream width between the ordinary high water lines, or at the
channel bankfull elevation if the ordinary high water lines are
indeterminate.
(3) "Artificial
obstruction" means any dam, diversion, dike, berm, levee, tide or flood gate,
road, culvert or other human-made device placed in the waters of this state
that precludes or prevents the migration of native migratory fish.
(4) "Attraction flow" means the flow that
emanates from or near a fishway entrance in sufficient quantity, velocity, and
location to attract upstream migrants into the fishway, which can consist of
gravity flow from the fish ladder and auxiliary water system flow added in or
near the lower ladder.
(5)
"Bankfull elevation" means the point on a stream bank at which overflow into a
floodplain begins.
(6) "Bed" or
"bed and banks" means the physical container of the waters of this state,
bounded on freshwater bodies by the ordinary high water line or bankfull stage,
and on bays and estuaries by the limits of the highest measured tide.
(7) "Channel" means a waterway that
periodically or continuously contains moving waters of this state and has a
definite bed and banks that serve to confine the water.
(8) "Commission" means the Oregon Fish and
Wildlife Commission.
(9)
"Construction" means:
(a) Original
construction;
(b) Major
replacement, which includes:
(A) for dams and
diversions, excavation or replacement of 30 percent by structure volume of the
dam, including periodic or seasonal replacements, unless:
(i) Only checkboards are replaced;
or
(ii) Fish passage approval has
already been obtained in writing from the Department for expected
replacement.
(B) For tide
gates and flood gates:
(i) Cumulative
replacement of over 50 percent of the gate material; or
(ii) Cumulative removal, fill, replacement,
or addition of over 50 percent of the structure supporting the gate, excluding
road-stream crossing structures.
(C) For dikes, berms, levees, roads, or other
artificial obstructions that segment estuaries, floodplains, or wetlands:
(i) Activities defined under OAR
635-412-0005(9)(d) in all locations where current channels cross the artificial
obstruction segmenting the estuary, floodplain, or wetland; or
(ii) The cumulative removal, fill,
replacement, or addition of over 50 percent by volume of the existing material
directly above an historic channel or historically-inundated area;
and
(D) For other
artificial obstructions, the cumulative removal, fill, replacement, or addition
of over 50 percent of the structure comprising the artificial obstruction to
native migratory fish migration;
(c) Structural modifications that increase
storage or diversion capacity; or
(d) For purposes of culverts, installation or
replacement of a roadbed or culvert, further defined as:
(A) Roadbed installation or replacement at
culverts includes any activity that:
(i)
Creates a road which crosses a channel;
(ii) Widens a roadfill footprint within a
channel; or
(iii) Fills or removes
over 50 percent by volume of the existing roadbed material directly above a
culvert, except when this volume is exclusively composed of the top 1 foot of
roadbed material.
(B)
Culvert installation or replacement includes any activity that:
(i) Installs or constructs a new culvert,
overflow pipe, apron, or wingwall within a channel;
(ii) Extends existing culverts, aprons, or
wingwalls within a channel, except one-time placements of culvert ends which do
not extend greater than 1 foot beyond the adjacent road footprint in place
prior to August 2001;
(iii)
Cumulatively through time makes significant repairs or patches to over 50
percent of the linear length of a culvert;
(iv) Replaces any part of a culvert, except
ends which become misaligned or eroded and which are replaced to their original
configuration;
(v) At any point
along the linear length of a culvert, reduces the entire inside perimeter of
the culvert; or
(vi) Makes
replacements, repairs, patches, or modifications to an existing culvert that
are different than the original configuration and which reduce any level of
fish passage for native migratory fish with current access, as determined by
the Department, to the culvert.
(10) "Dam" means a structure, or group of
structures with different functions, spanning or partially-spanning a stream in
one location in order to pool water, facilitate the diversion of water, or
raise the water surface elevation.
(11) "Department" means the Oregon Department
of Fish and Wildlife.
(12)
"Director" means the Director of the Oregon Department of Fish and
Wildlife.
(13) "Design streamflow
range" means the range of flows within a stream, bracketed by the Low Fish
Passage Design Flow and the High Fish Passage Design Flow, for which a fishway
shall provide fish passage.
(14)
"Emergency" means unforeseen circumstances materially related to or affected by
an artificial obstruction that, because of adverse impacts to a population of
native migratory fish, requires immediate action.
(15) "Estuary" means a body of water
semi-enclosed by land and connected with the open ocean within which salt water
is usually diluted by fresh water derived from the land. "Estuary" includes all
estuarine waters, tidelands, tidal marshes and submerged lands extending
upstream to the head of tidewater. However, for the purposes of these rules,
the Columbia River Estuary extends to the western edge of Puget
Island.
(16) "Exclusion barrier"
means a structure placed that prevents fish passage for the benefit of native
migratory fish.
(17) "Experimental
fish passage structure" means a fish passage structure based on new ideas, new
technology, or unique, site-specific conditions determined by the Department to
not be covered by existing fish passage criteria but to have a reasonable
possibility of providing fish passage.
(18) "Fish passage" means the ability, by the
weakest native migratory fish and life history stages determined by the
Department to require passage at the site, to move volitionally, with minimal
stress, and without physical or physiological injury upstream and downstream of
an artificial obstruction.
(19)
"Fish passage structure" means any human-built structure that allows fish
passage past an artificial obstruction, including, but not limited to, fishways
and road-stream crossing structures such as culverts and bridges.
(20) "Fishway" means the set of human-built
and/or operated facilities, structures, devices, and measures that together
constitute, are critical to the success of, and were created for the sole
purpose of providing upstream fish passage at artificial or natural
obstructions which create a discontinuity between upstream and downstream water
or bed surface elevations.
(21)
"Fishway entrance" means the component of a fishway that discharges attraction
flow into the tailrace and where upstream migrant fish enter the
fishway.
(22) "Fishway pools" means
discrete sections within a fishway separated by overflow weirs or non-overflow
walls that create incremental water surface elevation gains and dissipate
energy.
(23) "Floodplain" means
that portion of a river valley, adjacent to the channel, which is built of
sediments deposited during the present regimen of the stream and which is
covered with water when the waterway overflows its banks at flood
stage.
(24) "Forebay" means the
water impounded immediately upstream of an artificial obstruction.
(25) "Fundamental change in permit status"
means a change in regulatory approval for the operation of an artificial
obstruction where the regulatory agency has discretion to impose additional
conditions on the applicant, including but not limited to licensing,
relicensing, reauthorization or the granting of new water rights, but not
including water right transfers or routine maintenance permits unless they
involve construction or abandonment of an artificial obstruction.
(26) "High fish passage design flow" means
the mean daily average stream discharge that is exceeded 5 percent of the time
during the period when the Department determines that native migratory fish
require fish passage.
(27)
"Historically" means prior to 1859 (statehood).
(28) "Inflow" means surface movement of
waters of this state from a lower ground surface elevation to a higher ground
surface elevation or away from the ocean.
(29) "In-proximity" means within the same
watershed or water basin, as defined by the Oregon Water Resources Department,
and having the highest likelihood of benefiting the native migratory fish
populations, as defined by the Oregon Department of Fish and Wildlife, directly
affected by an artificial obstruction.
(30) "Low fish passage design flow" means the
mean daily average stream discharge that is exceeded 95 percent of the time,
excluding days with no flow, during the period when the Department determines
that native migratory fish require fish passage.
(31) "Mitigation" means alternatives to
providing fish passage at an artificial obstruction as per ORS
509.585.
(32) "Native migratory fish" means native
fish (as defined under OAR 635-007-0501) that migrate for their life cycle
needs. These fish include all sub-species and life history patterns of the
following species listed by scientific name in use as of 2005. Common names are
provided for reference but are not intended to be a complete listing of common
names, sub-species, or life history patterns for each species.
(a) Acipenser medirostris -- Green Sturgeon;
(b) Acipenser transmontanus --
White Sturgeon;
(c) Amphistichus
rhodoterus -- Redtail surfperch;
(d) Catostomus columbianus -- Bridgelip
sucker;
(e) Catostomus
luxatus/Deltistes luxatus -- Lost River sucker;
(f) Catostomus macrocheilus -- Largescale
sucker;
(g) Catostomus microps --
Modoc sucker;
(h) Catostomus
occidentalis -- Goose Lake sucker;
(i) Catostomus platyrhynchus -- Mountain
sucker;
(j) Catostomus rimiculus --
Klamath smallscale sucker;
(k)
Catostomus snyderi -- Klamath largescale sucker;
(l) Catostomus tahoensis -- Tahoe
sucker;
(m) Catostomus warnerensis
-- Warner sucker;
(n) Chasmistes
brevirostris -- Shortnose sucker;
(o) Hypomesus pretiosus -- Surf
smelt;
(p) Lampetra ayresi -- River
lamprey;
(q) Lampetra lethophaga --
Pit-Klamath lamprey;
(r) Lampetra
minima -- Miller Lake lamprey;
(s)
Lampetra similes -- Klamath River lamprey;
(t) Lampetra tridentate -- Pacific
lamprey;
(u) Oncorhynchus clarki --
Coastal, Lahontan and West Slope cutthroat trout;
(v) Oncorhynchus keta -- Chum
salmon;
(w) Oncorhynchus kisutch --
Coho salmon;
(x) Oncorhynchus
mykiss -- Steelhead, Rainbow and Redband trout;
(y) Oncorhynchus nerka -- Sockeye/Kokanee
salmon;
(z) Oncorhynchus
tshawytscha -- Chinook salmon;
(aa)
Prosopium williamsoni -- Mountain whitefish;
(bb) Ptychocheilus oregonensis -- Northern
pikeminnow;
(cc) Ptychocheilus
umpquae -- Umpqua pikeminnow;
(dd)
Salvelinus confluentus -- Bull trout;
(ee) Spirinchus thaleichthys -- Longfin
smelt;
(ff) Thaleichthys pacificus
-- Eulachon.
(33) "Net
benefit" means an increase in the overall, in-proximity habitat quality or
quantity that is biologically likely to lead to an increased number of native
migratory fish after a development action and any subsequent mitigation
measures have been completed.
(34)
"Ordinary high water line" (OHWL) means the line on the bank or shore to which
the high water ordinarily rises annually in season.
NOTE: see OAR 141-085-0010 for physical characteristics that can be used to determine the OHWL in the field.
(35) "Oregon Plan" means the
guidance statement and framework described in ORS
541.405.
(36) "Over-crowding" means fish density
within a pool's wetted volume is such that there is less than 0.25 cubic feet
of water per pound of fish for the maximum number of fish expected to be
present within the pool at the same time, as determined by the
Department.
(37) "Road" means a
cleared or built surface, and associated materials or measures for support and
safety, used for the purpose of motorized or non-motorized movement between
different locations.
(38) "Roadfill
footprint" means the area occupied by soil, aggregate, and/or other materials
or structures necessary to support a road, including, but not limited to,
appurtenant features such as wing walls, retaining walls, or
headwalls.
(39) "Stream" means a
body of running waters of this state moving over the surface of the land in a
channel or bed including stream types classified as perennial or intermittent
and channelized or relocated streams.
(40) "Sub-basin" means a 4th-field hydrologic
unit as defined by the U.S. Geological Survey.
(41) "Tailrace" means the water immediately
downstream of an instream structure.
(42) "Temporary" means in place less than the
in-water work period defined by the Department for a particular
location.
(43) "Trap" means the set
of human-built and/or operated facilities, structures, devices, and measures
that hold fish and prevent them from passing volitionally.
(44) "Unforeseen circumstances" means:
(a) An event that causes an existing
human-made structure in the waters of the state which provides fish passage to
become an artificial obstruction; or
(b) New fish population information
indicating that an existing artificial obstruction is placing a local native
migratory fish population in jeopardy.
(45) "Volitionally" means with minimal delay
and without being trapped, transferred, or handled by any person, unless
specifically allowed under OAR 635-412-0035(6).
(46) "Waters of this state" means natural
waterways including all tidal and non-tidal bays, intermittent and perennial
streams, constantly flowing streams, lakes, wetlands and other bodies of water
in this state, navigable and non-navigable, including that portion of the
Pacific Ocean that is within the boundaries of Oregon.
(47) "Wetlands" means those areas that are
inundated or saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil
conditions.
Notes
Stat. Auth.: ORS 496.138
Stats. Implemented: ORS 509.580, 509.585, 509.610 & 509.625
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