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(continued) ; or

(D) To achieve other fish management objectives approved in writing by the Department; and

(b) Exclusion barriers shall comply with National Marine Fisheries Service or U.S. Fish and Wildlife Service criteria.

(10) Requirements for fish passage during construction of fish passage structures and periods when temporary artificial obstructions are in place are:

(a) All fish passage structures shall be constructed and temporary artificial obstructions shall be in place only during the site-specific in-water work period defined or approved by the Department;

(b) At times indicated by the Department as per OAR 635-412-0035(1)(a), downstream fish passage shall be provided and:

(A) The outfall of a stream flow bypass system shall be placed to provide safe reentry of fish into the stream channel; and

(B) If downstream fish passage during construction is not required and stream flow is pumped around the site, the site shall meet Department screening and/or bypass requirements.

(c) At times indicated by the Department as per OAR 635-412-0035(1)(a), upstream fish passage shall be provided and shall be based on the wetted-width or flows of the stream during the period of construction or temporary obstruction;

(d) In-stream construction sites shall be isolated from stream flow and fish;

(e) Prior to in-stream construction activities, all fish shall be safely collected, removed from the construction site or de-watered reach, and placed in the flowing stream by an authorized person with a collection permit issued by the Department; and

(f) After construction, the construction site shall be re-watered in a manner to prevent loss of downstream surface water as the construction site's streambed absorbs water.

(11) Requirements for experimental fish passage structures are:

(a) Experimental fish passage structures shall only be allowed in waters of the state after:

(A) Laboratory testing with native migratory fish or similar species indicates that the structure is feasible to provide fish passage;

(B) Field testing with a prototype structure, at a location where existing fish passage will not be compromised and where fish passage does not need to be addressed under OAR 635-412-0020(2) and (3), indicates that the structure is likely to provide fish passage; and

(C) In addition to information needed to evaluate the structure's design for the specific location, the following are submitted to the Department and approved:

(i) A written summary of the laboratory and field testing and how the results indicate that fish passage shall be provided;

(ii) A monitoring and reporting plan to determine if the installed experimental fish passage structure meets applicable design objectives and is providing fish passage; and

(iii) A modification plan for the experimental fish passage structure if monitoring indicates that fish passage is not being provided, including standard thresholds that will initiate these modifications.

(b) If at any time an experimental fish passage structure is deemed by the Department in writing to not provide fish passage, the owner or operator, in consultation with the Department, shall make such modifications to the structure or operation as are necessary to provide fish passage, and, after a reasonable period, if modifications are deemed by the Department in writing to not provide fish passage, a fish passage structure that meets the standard criteria of OAR 635-412-0035 shall be installed as soon as practicable but no later than the end of the next complete in-water work period after notification by the Department;

(c) The owner or operator of an experimental fish passage structure shall allow the Department to inspect experimental fish passage structures at reasonable times;

(d) Five years after the experimental fish passage structure is installed and fish are present to attempt passage a final monitoring report shall be submitted to the Department and the Department shall determine if the experimental fish passage structure provides fish passage;

(e) If the Department determines that the experimental fish passage structure does not provide fish passage, a fish passage structure that meets the standard criteria of OAR 635-412-0035 shall be installed as soon as practicable but no later than the end of the next complete in-water work period after notification by the Department; and

(f) After three experimental fish passage structures of the same design concept are placed in waters of the state and deemed to provide fish passage by the Department, the experimental fish passage structure shall no longer be considered experimental.

Stat. Auth.: ORS 496.138
Stats. Implemented: ORS 509.585 & 509.610
Hist.: DFW 2-2006, f. & cert. ef. 1-9-06

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) Fish management measures to directly increase naturally-producing, wild, native migratory fish populations; and

(d) Other actions specifically approved by the Commission.

(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 designs in writing prior to implementation.

NOTE: mitigation actions 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 may require the posting of a bond or other financial instrument acceptable to the Commission to cover the cost of mitigation actions or providing fish passage at the artificial obstruction if the mitigation action does not achieve its goals.

(8) A person owning or operating 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, evaluating, and adaptive management which are approved by the Department, which assure that the goal of the mitigation is achieved and maintained, and which are detailed in the waiver 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) 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 information, or which have no clear benefit;

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

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

(j) May qualify for financial incentives or grants issued by the Department and the owner's or operator's cost for mitigation or passage at the artificial obstruction shall not be a factor in the Department's net benefit determination;

(k) May require data collection and evaluation 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; and

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

Stat. Auth.: ORS 496.138
Stats. Implemented: ORS 509.580, 509.585 & 509.610
Hist.: DFW 2-2006, f. & cert. ef. 1-9-06


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