(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.
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
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.
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.
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
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;
(b) To coordinate with
requirements of federal proceedings.
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) 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
For re-authorization of an existing hydroelectric project subject to ORS
543A.055 and not subject to
federal hydroelectric relicensing; and
(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
(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).
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