Or. Admin. R. 635-412-0025 - Fish Passage Waivers and Exemptions

(1) Waivers from fish passage requirements shall be granted for an artificial obstruction if the Commission (or Department, as applicable) determines that mitigation rather than fish passage proposed by the person owning or operating the artificial obstruction provides a net benefit to native migratory fish.

(2) Net benefit to native migratory fish is determined by comparing the benefit to native migratory fish that would occur if the artificial obstruction had fish passage to the benefit to native migratory fish that would occur using the proposed mitigation. To qualify for a waiver of the requirement to install fish passage, mitigation shall result in a benefit to fish greater than that provided by the artificial obstruction with fish passage. The net benefit to fish determination shall be based upon conditions that exist at the time of comparison.

(3) Waivers shall be valid so long as the owner or operator continues to provide the agreed-upon mitigation measures and until the waived artificial obstruction undergoes further construction, a fundamental change in permit status, or abandonment.

(4) The Commission (or Department as applicable) may grant exemptions from fish passage requirements at an artificial obstruction if it is determined that:

(a) A lack of fish passage has been effectively mitigated;

(b) The owner or operator has received a legal waiver for the artificial obstruction from the Commission or the Department; or

(c) There is no appreciable benefit to providing fish passage.

(5) For exemptions granted under subsection (4)(a) and (4)(b), the exemption continues only so long as the original benefit of the mitigation is maintained.

(6) The Commission shall review, at least once every seven years, exempt artificial obstructions that do not have exemption expiration date to determine whether the exemption should continue. The Commission may revoke or amend an exemption if it finds that circumstances have changed such that the basis for the exemption no longer applies. An exemption granted as a result of an action which triggered fish passage requirements under OAR 635-412-0020(2) tolls the trigger event until the exemption is revoked.

(7) To obtain a waiver or an exemption from fish passage requirements, an owner or operator of an artificial obstruction shall obtain from and submit to the Department an application for the waiver or exemption.

(8) Based on application review, verification and site-specific knowledge, Department staff shall provide a written benefit analysis of whether the waiver request meets the requirements of subsection (1) or the exemption request meets the requirements of subsections (4) and (5). If there is some level of fish passage at the artificial obstruction, but it does not meet the requirements of OAR 635-412-0035, that passage shall be factored into the Department's net benefit analysis, allowing a reduction in required mitigation.

(9) To receive a waiver, or an exemption under subsection (4)(a), an owner or operator of an artificial obstruction shall enter an agreement with the Commission (or Department as applicable) that clearly describes timelines, duties, responsibilities, and options regarding the mitigation. The agreement shall state that the mitigation shall be completed prior to completion of or by the end of the same in-water work period as the action which triggered fish passage requirements under OAR 635-412-0020(2), unless the Commission finds that additional time is necessary and appropriate:

(a) Given the size and scope of the project; or

(b) To coordinate with requirements of federal proceedings.

(10) Once the application, analysis, and a draft agreement are completed, a decision on whether the waiver or exemption shall be granted shall be made by:

(a) The Department:

(A) If it determines that the total stream distance, including tributaries, affected by the artificial obstruction for which the waiver or exemption is being sought is less than or equal to 1 mile to a natural barrier;

(B) If the request is for an exemption under subsection (4)(a) or (4)(b); or

(C) For re-authorization of an existing hydroelectric project subject to ORS 543A.030 to 543A.055 and not subject to federal hydroelectric relicensing; and

(b) The Commission:

(A) In all other instances; or

(B) If the Department refers a decision to the Commission; or

(C) If the owner or operator files a protest of the Department's determination to the Commission.

(11) The decision to grant a waiver or exemption shall include the determination described in subsection (1) or (4) as well as approval of the agreement required in subsection (9).

(12) In addition to the Fish Passage Task Force as prescribed in OAR 635-412-0010(4)(e) and (g), the Department shall notify local watershed council(s), local soil and water conservation district(s), identified stakeholders, and others who have expressed an interest in fish passage issues or the specific waiver or exemption request and provide an opportunity to comment on the request at least three weeks prior to a decision on whether the waiver or exemption should be granted.

(13) The Commission (or Department, as applicable) may require further public comment prior to a decision on whether a waiver or exemption should be granted.

(14) The Department shall maintain a database of the locations of waived and exempted artificial obstructions and mitigation.

Notes

Or. Admin. R. 635-412-0025

DFW 23-2003, f. & cert. ef. 3-26-03; DFW 2-2006, f. & cert. ef. 1-9-06

Stat. Auth.: ORS 496.138

Stats. Implemented: ORS 509.585 & 509.645