Or. Admin. Code § 635-412-0015

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

Section 635-412-0015 - Prioritization

(1) The Department shall establish a list of priority artificial obstructions at which fish passage would provide the greatest benefit to native migratory fish for restoration and enforcement purposes.

(2) The priority list may exclude artificial obstructions where a legal agreement with the Department or Commission specifically indicates fish passage is not required.

(3) The Department will prioritize working collaboratively with the owners or operators of artificial obstructions on the priority list to establish fish passage.

(4) The priority list shall be based on the current and future needs of native migratory fish.

(5) When determining placement of an artificial obstruction on the priority list, the Department may use existing Department information or professional judgment.

(6) When determining placement of an artificial obstruction on the priority list, the Department shall consider the following factors relative to each artificial obstruction for all native migratory fish currently or historically in waters of this state where the artificial obstruction is located. These factors include but may not be limited to:

(a) The current and future quantity of native migratory fish habitat which is inaccessible;

(b) The current and future quality of native migratory fish habitat which is inaccessible;

(c) The reasonably foreseeable future quantity and quality of native migratory fish habitat given known trends in climate change (e.g., changes in timing and quantity of streamflow and stream temperatures);

(d) Unique or limited native migratory fish habitat which is inaccessible, or should remain inaccessible for fish management purposes;

(e) The biological status of the native migratory fish;

(f) The level of fish passage currently provided at the artificial obstruction;

(g) The presence of other artificial obstructions upstream or downstream and the timeframe native migratory fish will be able to use restored passage; and

(h) Existing agreements with the Department regarding fish passage.

(7) The Department shall field verify the information used for prioritization prior to initiating any enforcement action.

(8) The Department shall make changes to the priority list using the most recent information after enforcement occurs at five priority artificial obstructions or as directed by the Commission.

(9) The Commission shall review and amend the priority list when the Department changes the ranking of barriers on the list, and at least once every five years.

(10) The Department may order an owner or operator of an artificial obstruction on the priority list who has been issued a water right, owns a lawfully installed culvert or owns another lawfully installed obstruction to install fish passage or to provide mitigation within a defined timeframe under any of the following circumstances:

(a) The owner or operator of an artificial obstruction refuses to work cooperatively with the Department;

(b) The Department can arrange for non-owner or non-operator funding of at least 60 percent of the cost for fish passage design, construction, and installation; or

(c) The artificial obstruction is ranked in the top ten within a Department Region on the priority list.

(11) Once the Department has arranged for non-owner or non-operator funding of at least 60 percent of the cost for fish passage design, construction, and installation at an artificial obstruction the owner or operator of an artificial obstruction has two years from the Department's order to:

(a) Install a fish passage structure according to a fish passage plan approved by the Department; or

(b) Provide mitigation that the Commission determines is a net benefit to native migratory fish.

(12) The relative position of an artificial obstruction on the priority list should not be used as a basis for approving or denying an application for an exemption.

Or. Admin. Code § 635-412-0015

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