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Fish Passage Legislative Background

In Oregon, providing fish passage over man-made dams and diversions has been required since before statehood in 1859. However, fish passage statutes, which have evolved over the past 150 years, required passage at all artificial obstructions and did not provide cost-share opportunities for owners or operators. In 1996, the Attorney General determined that the existing statute did not give ODFW or the Oregon Fish and Wildlife Commission authority to waive fish passage at artificial obstructions, even though this had been done in the past. The Legislature subsequently gave short-term authorization for the Commission to grant waivers to fish passage requirements.

A Fish Passage Task Force was also created to devise new fish passage statutes. The legislation this Task Force devised through a facilitated, consensus-based process was numbered House Bill 3002 (“HB 3002”) during the 2001 Legislative session. Task Force membership included representatives from the following organizations: ODFW, GNRO, OWRD, Oregon Counties, League of Oregon Cities, Portland Water Bureau, Association of Special Districts, Oregon Association of Water Utilities, Oregon Water Utility Council, Coos Bay North Bend Water Board, Oregon Farm Bureau, Small Water Users, Oregon Water Resources Congress, Idaho Power, PacifiCorp, Oregon Trout, NW Sport Fishing Association, and the Pacific Coast Federation of Fishermen's Association.

On August 8th, 2001, Governor Kitzhaber signed HB 3002 into law. One of the main objectives of HB 3002 was to craft legislation that combined the existing statutes into one meaningful piece of legislation, was reasonable for owners/operators, benefited fish that migrate for lifecycle needs, and had enough flexibility for the Commission to waive passage requirements under appropriate circumstances. Doing this in a way that encouraged cooperation and minimized the burden to owners and operators of artificial obstructions, while maintaining the authority of the Commission to enforce its laws, proved to require a great deal of creativity and flexibility. HB 3002 is intended to complement, not to abrogate, any related authority under other state and federal laws.

Some key notes about HB 3002 and the current fish passage statutes are:

As a state policy, upstream and downstream passage is required at all artificial obstructions in those Oregon waters in which migratory native fish are currently or have historically been present, except under certain clearly defined circumstances (laid out below).

The primary method for implementing this policy should be through active collaboration and cooperation between the Department of Fish and Wildlife and owners or operators of artificial obstructions, not an increase in enforcement orders from the Department.

The Task Force chose the "triggers" as the time to address fish passage because it assumed an owner or operator could most easily build the costs of fish passage into the costs of a major structural upgrade, original or replacement construction, or a request for a significant change to the obstruction's permit (such as seeking a license, re-license, reauthorization or new water rights). Since the circumstances existing at the time such projects were built vary considerably, and the documentation of approvals may or may not be clear, consideration (equity) should be given on a case-by-case basis. If no legal waiver exists, the equities of the situation, in the context of the purpose of the project, and the difficulties and costs of retrofitting will all have to be considered in determining the required passage or alternatives.

HB 3002 requires ODFW to complete and maintain a statewide inventory of artificial obstructions, which will be used to prioritize artificial barriers. This prioritization will not only help guide the agency's efforts, but also will provide a level of certainty to owners and operators of artificial obstructions as to when and where such efforts will be focused.

The Task Force also acknowledged the historical waiver or non-enforcement of fish passage requirements that resulted in numerous dams and diversions without fish passage. These dams and diversions need to be reviewed to ascertain which have truly been granted a waiver and/or have provided the required alternatives so that no future requirements should apply, and those which may have been "overlooked" or pre-date the types of requirements necessitated by current conditions.

The requirement for fish passage should be waived if alternatives to passage provide a net benefit to fish.

Artificial obstructions without fish passage are exempt from any further fish passage requirements (and therefore not in violation of the law) if the lack of passage has been effectively mitigated (alternatives provided), if the Commission has granted a legal waiver of the requirement, or if the Commission finds there is no benefit to providing fish passage. Exemptions other than a permanent legal waiver are to be reviewed every seven years unless they have an established exemption expiration date.

The Department and the owner/operators are encouraged to negotiate the fish passage requirements, including appropriate cost sharing and other equitable factors.

HB 3002 provides the Fish and Wildlife Commission with emergency authority to require installation of fish passage at the owner/operator's expense if a population of native migratory fish is adversely impacted. Task Force members felt strongly that this authority should not be used as a method for avoiding the cost-share provisions of the proposed statute that is noted below.

As a practical approach for achieving the policy of fish passage, the statute allows the Commission to require fish passage at existing priority obstructions if it can fund (from any source other than the owner/operator) 60% or more of the cost of providing fish passage facilities or alternatives to fish passage. An owner or operator of a legally constructed artificial obstruction may voluntarily opt into the cost-share provisions even if his/her obstruction is not on the priority list. A cost share application is available on this website.

The cost-share portion of the proposed statute is intended to provide an incentive to owners and operators for building fish passage facilities at their obstructions. It is also intended to foster the cooperation and collaboration that the Task Force suggests is necessary to achieve the overall goal of fish passage on a statewide basis. ODFW expects to access such funding through federal and other programs, with proper budget limitation granted by the Legislature.

Any artificial obstructions that are not covered in any of the above categories may be ordered to install fish passage or alternatives at the owner or operator's expense. The direction to the Department to focus its enforcement efforts at obstructions on its priority list still applies. This overall provision is intended to catch any obstructions that were constructed without fish passage in a clearly unlawful manner. This would include those that did not get water rights, did not obtain appropriate permits, etc. It reiterates the basic policy that fish passage is required at all artificial obstructions.

The Task Force had members who also serve on the Task Force on Hydroelectric Issues established under section 39, chapter 449, Oregon Laws 1997. HB 3002 incorporates recommendations of the subcommittee into the statute that allows integration of fish passage review with the current state and federal re-licensing processes.

HB 3002 directed ODFW to create a citizen Fish Passage Task Force to advise the Department in matters related to fish passage. A list of Task Force members is now available from this website.

Protecting Oregon's migratory native fish continues to be an important issue for Oregonians just as it was prior to statehood. The diversity of interests represented on this 2000-2001 Fish Passage Task Force made it clear that finding a practical way to protect these fish is a necessary step in the state's evolution. Members of the Task Force, while not agreeing on all issues all the time, were dedicated to the notion of finding a common sense and common ground solution that meets the challenge of protecting species, while making advances in the 21st Century.

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