VACANCY RECRUITMENT - OREGON FISH PASSAGE TASK FORCE
ODFW is currently recruiting three new members for the state’s Fish Passage Task Force. Interested parties can find more information in the news release announcing the recruitment. The application deadline is March 17 – see application form.
For additional information contact Greg Apke, ODFW Fish Passage Program Coordinator, at (503) 947-6228 or email@example.com.
CULVERT REPAIR PILOT PROJECT – 2016 ODOT ANNUAL REPORT (pdf)
It is the policy of the State of Oregon to provide for upstream and downstream passage of Native Migratory Fish (NMF) in all waters of this state in which NMF are currently or have historically been present, as per Oregon Revised Statute 509.585. Oregon Department of Fish and Wildlife (ODFW) administers the state’s fish passage statutes and corresponding administrative rules (OAR 635-412-0005 – 0040). Recent culvert inventories by the Oregon Department of Transportation (ODOT) has revealed that approximately 10,500 of the 35,000 (~ 30%) state owned and managed culverts are in poor or critical condition and need to be repaired or replaced in the near term to maintain the safety and integrity of the State highway system. ODOT estimates indicate the cost to replace all of these culverts in kind would exceed one billion dollars. At the same time that the increased need for culvert repair and replacement is coming to light, Federal funds for highway projects have been drastically reduced (from $740 million in 2011 to approximately $300 million in 2015). State gas tax revenues, the principal funding source for the ODOT Maintenance Program is also decreasing. Culvert repair work on fish-bearing streams has largely been deferred over the past 10 years, because of the inability to meet fish passage design criteria with a repair and the lack of available funding for full fish passage criteria replacements.
ODOT and ODFW are presently implementing a Culvert Repair Programmatic Agreement (CRPA) 3-year pilot project. This pilot project, approved by the Oregon Fish and Wildlife Commission in October of 2014, allows ODOT to make specific short-term repairs to culverts without having to meet full fish passage criteria at the repair location. This pilot project provides ODOT flexibility to make critical repairs to aging culverts in a cost effective manner, while providing a net benefit to NMF over the status quo by improving fish passage at each site repaired. In addition, ODOT agreed to pay $1.8 million into an ODFW-managed account that will fund high priority fish passage projects off the State highway system to offset delayed passage at culvert repair locations. When the compensation projects are complete they will provide NMF access to ~ 139.0 miles of good and excellent quality habitat.
The goals of the culvert repair pilot project include:
- Provide improved fish passage conditions at each culvert repair site,
- Address statewide fish passage priority barriers using the $1.8 million dollar fish passage fund in the most expeditious and efficient way practical,
- Improve State highway infrastructure conditions at each culvert repair site to address public safety, and
- Generate information on the costs, impacts, efficiency, and effectiveness of the CRPA pilot project approach.
Presently, the culvert repair pilot project is in the third year of implementation. A vital component of the pilot project is to monitor, evaluate and report on success of the project. The following report is the 2016 ODOT Annual Monitoring Report for this pilot project. Please contact Greg Apke, ODFW Statewide Fish Passage Program Coordinator firstname.lastname@example.org or Art Martin, ODFW-ODOT Transportation Liaison Art.C.Martin@state.or.us with comments or questions.
The Culvert Repair Programmatic Agreement (CRPA) Annual Report 2016 (pdf)
Fish Passage Mitigation Banking
The Oregon Department of Fish and Wildlife (ODFW) Fish Passage Program has developed a plan to test an approach to Fish Passage Mitigation Banking in Oregon’s North Coast. In 2012, with support from ODFW staff, the Oregon Department of Transportation (ODOT), Willamette Partnership and The Nature Conservancy began work on a package of tools that would support a pilot fish passage banking program.
Fish passage banking will allow ODFW to steer mitigation from multiple waivers toward fish passage banks – locations where high priority barriers are removed and significant benefits for fish are created. Read more . . .
Since August 2001, the owner or operator of an artificial obstruction located in waters in which native migratory fish are currently or were historically present must address fish passage requirements prior to certain trigger events. Laws regarding fish passage may be found in ORS 509.580 through 910 and in OAR 635, Division 412.
Trigger events include installation, major replacement, a fundamental change in permit status (e.g., new water right, renewed hydroelectric license), or abandonment of the artificial obstruction. Further details concerning triggers can be requested from the Oregon Department of Fish and Wildlife (ODFW).
Native migratory fish include native salmon, trout, lamprey, sturgeon, and suckers, as well as a few other species. It is ODFW's responsibility to determine the current or historical presence of native migratory fish; for streams lacking data this determination may be based on professional judgement. If the owner/operator knows that native migratory fish are or were present at the site, then the owner/operator does not need to contact ODFW for this determination and may proceed with meeting fish passage requirements on their own information. However, if the owner/operator does not think native migratory fish are or were present, or is unsure of presence, ODFW should be contacted to make the determination.
Addressing fish passage requirements entails the owner/operator obtaining from ODFW: 1) approval for a passage plan when passage will be provided, 2) a waiver from providing passage, or 3) an exemption from providing passage. It is the intent of state fish passage laws (ORS 509.585(1)) that, in most cases, option #1 should be sought and passage should be provided at the artificial obstruction.
Note that complying with ODFW's fish passage requirements is likely not the only regulatory approval needed to perform many actions at or in relation to an artificial obstruction. Oregon Department of State Lands, Oregon Water Resources Department, US Army Corps of Engineers, NOAA Fisheries, other ODFW sections (e.g., habitat and fish salvage), or other local, state, or federal agencies may also have permits or requirements which must be met.
PROCESS: DO YOU NEED TO ADDRESS FISH PASSAGE?
An overview of the entire fish passage process can be found on the ODFW Fish Passage Program website. There are several preliminary items which must be considered before the owner/operator must address fish passage at an artificial obstruction.
- Is there a trigger? It is the responsibility of the owner/operator of an artificial obstruction to know whether they will trigger the need to address fish passage. However, if there is a question whether a particular action is a trigger, then ODFW should be contacted for trigger clarification. If an action is a trigger, fish passage will only need to be addressed if native migratory fish are currently or were historically present in the stream reach of the artificial obstruction.
- Native Migratory Fish Determination. A local ODFW biologist should be contacted to determine native migratory fish presence at the site. If native migratory fish are or were historically present then fish passage must be addressed. Project proponents should assume that fish passage must be addressed regardless of stream size or seasonality if no determination from ODFW regarding fish presence is requested.
If there is a trigger and native migratory fish are or were present, then fish passage must be addressed. As previously stated, this entails either providing passage or obtaining a waiver or exemption. Providing passage is preferred, and this requires ODFW approval, as described in the next section.
PROCESS: PASSAGE PLAN APPROVAL
Passage plans and installed structures must comply with ODFW Fish Passage Criteria, which can be found on the ODFW Fish Passage Program website. Fish passage criteria and design are normally based on the migration timing and swimming ability of the weakest individual of the weakest species and life history stage of native migratory fish which are present that require upstream access. Thus, it is important to identify this information for the location in question. With this in mind, here are some key steps for addressing fish passage prior to a trigger event:
- Fish Passage Criteria and Design Information. If native migratory fish are or were present at the site and passage must be addressed, then the local ODFW biologist should determine the specific native migratory fish species, life history stages, and migration timing (i.e., months of the year passage is required for these fish) at the site. This can be done at the same time as the Native Migratory Fish Determination discussed above. For certain passage design methods this information will determine which passage criteria must be met. If approved by ODFW's Fish Passage Coordinator, ODFW management objectives and other relevant factors may allow deviation from the timing and/or weakest species or stage design requirements. Project proponents should assume that the weakest fish contained in the criteria are present and require passage regardless of stream size or seasonality if no determination from ODFW regarding fish passage needs is requested.
- Passage Plan Approval. Once a structure has been designed, a local ODFW biologist should be contacted to obtain passage plan approval if ODFW approval is not explicitly obtained through another State of Oregon permitting process such as the Oregon Department of State Lands' fill-removal permitting or the Oregon Department of Forestry's forest practices notification. Note that complicated structures requiring engineering review, such as hydraulic-method culverts, fishways, and tidegates, will take more time for approval due to the nature of the structure and potential need to also involve ODFW statewide engineering staff. Also, based on workload, ODFW engineers may be able to provide technical assistance during the design stage; contact the ODFW Fish Passage Coordinator for more information.
PROCESS: WAIVERS AND EXEMPTIONS
If passage will not be provided at the artificial obstruction then a waiver or exemption must be obtained prior to the trigger event.
Waivers should be sought if providing passage at the artificial obstruction would provide a benefit to native migratory fish. Fish passage waivers allow an artificial obstruction to not provide fish passage if an "alternative to fish passage" is provided. Herein the "alternative to fish passage" will be referred to as "mitigation". Mitigation must provide a net benefit to native migratory fish over providing passage at the artificial obstruction in question. The mechanism for granting waivers and assuring the benefit provided by mitigation is an official Agreement which both the owner/operator and ODFW must sign if the waiver is approved. If all provisions of the Agreement are met, waivers are valid until the next trigger event at the artificial obstruction, which may be indefinitely.
Fish passage exemptions are different than a waiver and can be granted for three reasons: 1) a lack of fish passage has already been mitigated, 2) a legal waiver has already been granted, or 3) there is no appreciable benefit to native migratory fish by providing passage. Pre-existing mitigation should be currently functioning, well documented for the site in question, and should have had ODFW involvement in approval. Mitigation does not need to be provided for exemptions based on “no appreciable benefit” to providing passage at the site. Exemptions are reviewed at least every seven years and are revocable. If an exemption is revoked then passage must be provided immediately, independent of a trigger event.
An application for a waiver or an exemption must be submitted to ODFW. The same application is used to apply for either a waiver or an exemption and is available on the ODFW Fish Passage Program website. Once an application is submitted to ODFW, an approval decision will typically take from 2-3 months, though this may vary depending on the complexity of the situation and ODFW workload. The waiver or exemption process entails the following steps (with typical ODFW time-frame in parenthesis):
- The owner/operator of the artificial obstruction submits a signed and completed Application to the ODFW Fish Passage Coordinator at 4034 Fairview Industrial Dr. SE, Salem, OR 97302.
- ODFW completes a written Benefit Analysis (3 weeks).
- ODFW develops a Draft Agreement (1 week) which is then forwarded to the owner/operator for review, comment, and preliminary approval.
- ODFW develops (1 week) a Public Notice soliciting comments regarding the waiver or exemption request. This will remain in effect for 3 weeks after distribution.
- After the public comment period, an approval decision will be made by the ODFW Fish Passage Coordinator (1 week) or the Oregon Fish and Wildlife Commission (at least 3 weeks). The Fish Passage Coordinator may make the decision under the following circumstances: i) if the total natural affected stream distance to natural barriers, independent of other artificial obstructions, is less than or equal to 0.5 mile, ii) if the request is for an exemption granted on the basis of prior receipt of a legal waiver, or iii) for re-authorization of an existing hydroelectric project subject to ORS 543A.030 to 055 and not subject to federal hydroelectric relicensing.
- If the waiver or exemption is approved and mitigation is involved, the Agreement is signed by both parties and carried out. If mitigation is not involved or the waiver or exemption is not approved, a letter will be sent from ODFW to the owner/operator indicating the decision outcome (1 week).