Or. Admin. Code § 635-412-0005

Current through Register Vol. 63, No. 10, October 1, 2024

Section 635-412-0005 - Definitions

(1) For the purposes of OAR 635-412-0010 through 635-412-0065 the following definitions shall apply.

(2) "Abandonment" means to surrender, decommission, no longer use for an authorized purpose, or give up control.

(3) "Active channel width" means the naturally occurring cumulative stream width(s) between the ordinary high water lines, or at the channel bankfull elevation if the ordinary high water lines are indeterminate.

(4) "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. Preventing the migration of native migratory fish includes causing a significant delay in the time taken for passage of native migratory fish.

(5) "Attraction flow" means water that flows from or near a fishway entrance in sufficient quantity, velocity, and location to attract fish as they migrate upstream into the fishway, which can consist of gravity flow from the fish ladder and auxiliary water system flow added in or near the fishway entrance.

(6) "Bankfull elevation" means the point on a stream bank at which overflow into a floodplain begins.

(7) "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.

(8) "Channel" means that portion of a natural (perennial or intermittent) waterway that periodically or continuously contains moving waters of this state and has a definite bed and banks that serve to confine the water.

(9) "Commission" means the Oregon Fish and Wildlife Commission.

(10) "Construction" with respect to artificial obstructions subject to these rules, means:

(a) Original construction;

(b) Major replacement, which includes:

(A) For existing dams and diversions, either a single or cumulative:

(i) Excavation or replacement of 30 percent by structure volume;

(ii) Repairs, patches, or modifications to over 30 percent of the area of the upstream, downstream, or top face of the dam (measured above the natural ground gradeline that is used to impound water); or

(iii) Repairs, patches, or modifications different than the original configuration and that reduce, as determined by the Department, the adequacy of fish passage including periodic or seasonal replacements, unless only checkboards are replaced, or in the case of existing seasonal dams or diversions, the artificial obstruction is in compliance with a water right(s), other regulatory requirements, and the artificial obstruction maintains an open channel connection with adequate water flow and depth conditions that meet OAR 635-412-0035 (2) when instream water is available and between the fish passage design streamflow range.

(B) For existing tide gates and flood gates, either a single or cumulative:

(i) Replacement of over 50 percent of the gate material, including hinges and the gate itself if detached;

(ii) Removal, fill, replacement, or addition of over 50 percent of the structure supporting the gate, excluding road-stream crossing structures; or

(iii) Replacements, repairs, patches, or modifications different than the original configuration and that reduce the adequacy of fish passage, as determined by the Department.

(C) For existing dikes, berms, levees, roads, culverts, bridges, or other artificial obstructions that segment estuaries, floodplains, or wetlands, either a single or cumulative:

(i) Activity or activities defined under OAR 635-412-0005(10)(d) in all locations where current channels cross the artificial obstruction segmenting the estuary, floodplain, or wetland; or

(ii) 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 existing artificial obstructions, the single or cumulative removal, fill, replacement, or addition of over 50 percent of the device that impedes fish passage;

(c) Structural modifications that increase storage or diversion capacity; or

(d) Installation or replacement of a roadbed, culvert, or bridge that includes any activity that:

(A) Creates a road or bridge that crosses a channel;

(B) Widens a roadfill footprint within a channel;

(C) 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;

(D) Installs or constructs a new road, culvert, bridge, overflow pipe, apron, or wingwall within a channel;

(E) 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;

(F) Makes either single or cumulative repairs, patches, or modifications to over 50 percent of the linear length of a culvert;

(G) Makes either single or cumulative repairs, patches, or modifications to over 50 percent of the structural volume of a bridge or its elements except when this volume is exclusively composed of the traveling surface of a bridge deck;

(H) Replaces any part of a culvert, except ends that become misaligned, detached, or eroded and are replaced to their original configuration;

(I) At any point along the linear length of an existing culvert, reduces the entire inside perimeter of the culvert; or

(J) Makes replacements, repairs, patches, or modifications to an existing culvert or bridge that are different than the original configuration and reduce, as determined by the Department, the adequacy of fish passage.

NOTE: see Department Memorandum for clarification of fish passage triggers and guidelines for bridges.

(11) "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.

(12) "Department" means the Oregon Department of Fish and Wildlife.

(13) "Director" means the Director of the Oregon Department of Fish and Wildlife.

(14) "Design streamflow range" means the range of flows within a stream, between the Low Fish Passage Design Flow and the High Fish Passage Design Flow, for which a fishway or other structure shall provide fish passage.

(15) "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.

(16) "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.

(17) "Exclusion barrier" means a structure placed that prevents fish passage for the benefit of native migratory fish.

(18) "Exemption" means not providing fish passage at an artificial obstruction when either mitigation in lieu of providing fish passage through a waiver as defined in ORS 509.585(9)(a)(A) is authorized, an artificial obstruction has been granted a legal waiver as defined in ORS 509.585(9)(a)(B), or a finding that there is no appreciable benefit to providing fish passage at the artificial obstruction as defined in ORS 509.585(9)(a)(C).

(19) "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.

(20) "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 either volitionally or by trap collection and transport if consistent with requirements of OAR 635-412-0035(6), with minimal stress, minimal delay, and without physical or physiological injury upstream and downstream of an artificial obstruction.

(21) "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.

(22) "Fishway" means the set of human-built or operated facilities, structures, devices, and measures that together constitute, are critical to the success of, and were created for the primary purpose of providing upstream or downstream fish passage at artificial or natural obstructions which create a discontinuity between upstream and downstream water or bed surface elevations.

(23) "Fishway entrance" means the component of a fishway that discharges attraction flow into the waterway downstream of an artificial obstruction where upstream migrant fish enter the fishway.

(24) "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.

(25) "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.

(26) "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 the action involves construction or abandonment of an artificial obstruction.

(27) "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 native migratory fish require fish passage.

(28) "Historically" means before 1859 (statehood).

(29) "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.

(30) "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 determined by the Department, directly affected by an artificial obstruction.

(31) "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 native migratory fish require fish passage.

(32) "Mitigation" means alternatives to providing fish passage at an artificial obstruction that provide a net benefit to native migratory fish.

(33) "Native migratory fish" means naturally or hatchery produced native fish (as defined under OAR 635-007-0501) indigenous (i.e., not introduced) to Oregon 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 2022. 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 macrocheilus - Largescale sucker;

(f)Catostomus microps - Modoc sucker;

(g)Catostomus occidentalis - Goose Lake sucker;

(h)Catostomus platyrhynchus - Mountain sucker;

(i)Catostomus rimiculus - Klamath smallscale sucker;

(j)Catostomus snyderi - Klamath largescale sucker;

(k)Catostomus tahoensis - Tahoe sucker;

(l)Catostomus tsiltcoosensis - Tyee sucker,

(m)Catostomus warnerensis - Warner sucker;

(n)Chasmistes brevirostris - Shortnose sucker;

(o)Deltistes luxatus -- Lost River sucker;

(p)Entosphenus folletti -- Northern California brook lamprey;

(q)Entosphenus lethophagus -- Pit-Klamath brook lamprey;

(r)Entosphenus minimus -- Miller Lake lamprey;

(s)Entosphenus similis -- Klamath River lamprey;

(t)Entosphenus tridentatus -- Pacific lamprey;

(u)Hypomesus pretiosus - Surf smelt;

(v)Lampetra ayresii - Western river lamprey;

(w)Lampretra pacifica -- Pacific brook lamprey;

(x)Lampetra richardsoni -- Western brook lamprey;

(y)Oncorhynchus clarkii - Cutthroat trout;

(z)Oncorhynchus gorbuscha -- Pink salmon;

(aa)Oncorhynchus keta - Chum salmon;

(bb)Oncorhynchus kisutch - Coho salmon;

(cc)Oncorhynchus mykiss - Steelhead, Rainbow and Redband trout;

(dd)Oncorhynchus nerka - Sockeye/Kokanee salmon;

(ee)Oncorhynchus tshawytscha - Chinook salmon;

(ff)Prosopium williamsoni - Mountain whitefish;

(gg)Ptychocheilus oregonensis - Northern pikeminnow;

(hh)Ptychocheilus sp. -- Siuslaw pikeminnow;

(ii)Ptychocheilus umpquae - Umpqua pikeminnow;

(jj)Salvelinus confluentus - Bull trout;

(kk)Spirinchus thaleichthys - Longfin smelt;

(ll)Thaleichthys pacificus - Eulachon.

(34) "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.

(35) "No Appreciable Benefit to Providing Fish Passage" means, as determined by the Department using its best professional judgement, fish habitat that would be made accessible, or more accessible, in the reach upstream or downstream of the artificial obstruction, does not currently provide, and will not foreseeably provide before a review occurs in seven years pursuant to ORS 509.585(9)(b), habitat of the type, duration, frequency, quality, or quantity necessary to support one or more life history stages of the native migratory fish that are present, or will foreseeably be present before a review occurs in seven years pursuant to ORS 509.585(9)(b), upstream or downstream of the artificial obstruction.

(36) "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.

(37) "Oregon Plan" means the guidance statement and framework described in ORS 541.898.

(38) "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.

(39) "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.

(40) "Roadfill footprint" means the area occupied by soil, aggregate, or other materials or structures necessary to support a road, including, but not limited to, wing walls, retaining walls, headwalls, bridge supports, abutments, piers, or scour protection countermeasures.

(41) "Roughened channel" means a fishway designed to provide fish passage which encompasses the entire stream channel and may be over-steepened relative to the long-channel streambed profile, including but not limited to nature-like rock, rock ramp, or engineered-streambed fishways.

(42) "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.

(43) "Structure volume" means volumetric calculation of an existing dam or other artificial obstruction and its elements or components.

(44) "Sub-basin" means a 4th-field hydrologic unit as defined by the U.S. Geological Survey.

(45) "Tailrace" means the water immediately downstream of an instream structure discharging flow to a receiving water body.

(46) "Temporary" means in place less than the in-water work period defined by the Department for a particular location.

(47) "Trap" means the set of human-built or operated facilities, structures, devices, or measures that hold fish and prevent them from passing volitionally.

(48) "Trash rack" means a human built or placed measure used to prevent unwanted materials from entering a fishway, culvert, bridge, water diversion or other structures.

(49) "Trigger" means any event or activity that qualifies as construction, abandonment, or a fundamental change in permit status pursuant to Division 412 rules associated with or at any artificial obstruction that requires an owner or operator of that artificial obstruction to provide fish passage or alternatives to fish passage consistent with such rules. A trigger at one artificial obstruction physically connected to another artificial obstruction requires passage be addressed at both connected structure(s).

(50) "Unforeseen circumstances" means:

(a) An event that causes an existing human-made structure in the waters of this 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.

(51) "Volitionally" means with minimal delay and without being trapped, transferred, or handled by any person.

(52) "Waiver" means a fish passage exemption specifically allowed under OAR 635-412-0025 (1)(a) or (b) if the Commission or Department, as applicable, determines that alternatives to providing fish passage at an artificial obstruction, as proposed by the owner or operator of the artificial obstruction, provides a net benefit to native migratory fish.

(53) "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.

(54) "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.

Or. Admin. Code § 635-412-0005

DFW 2-2006, f. & cert. ef. 1-9-06; DFW 154-2022, amend filed 12/19/2022, effective 1/1/2023

Statutory/Other Authority: ORS 496.138 & ORS 509.585

Statutes/Other Implemented: ORS 496.012 & ORS 509.585