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ODFW seeks comment on fish passage waiver

June 1, 2020

The Oregon Department of Fish and Wildlife (ODFW) seeks public comment on a request to provide a waiver from the state’s fish passage requirements for a new hydroelectric project situated on the Crooked River at the existing Bowman Dam in Crook County. Comments are due by Monday June 22, 2020.

Ochoco Irrigation District (Applicant) secured a preliminary permit from the Federal Energy Regulatory Commission to install a hydroelectric power plant at Bowman Dam located approximately 20-miles upstream of Prineville and owned and managed by the Bureau of Reclamation. This action has triggered Oregon’s fish passage laws. The Applicant has requested a fish passage waiver in lieu of providing passage at Bowman Dam. In exchange for not providing fish passage at the Dam, the Applicant has proposed mitigation actions identified in the waiver application.

Applicant Support Materials (pdfs)

Contact Ted Wise, ODFW East Region Hydropower Program Coordinator at 61374 Parrell Road Bend, OR 97702, by e-mail, ted.g.wise@state.or.us, or by calling (541) 633-1115

Read more . . .


ODFW seeks comment on fish passage waiver

May 22, 2020

SALEM, Ore. – The Oregon Department of Fish and Wildlife seeks public comment on a request to provide a waiver from the state’s fish passage requirements for replacement of a road culvert owned by the Olympic Resource Management (ORM). Comments are due by Friday June 12, 2020.

The ORM plans to replace a road culvert located on an unnamed tributary to Crooked Creek along the Crooked Creek Mainline road within the Upper Nehalem River Basin in Columbia County. This action has triggered Oregon’s fish passage laws. In lieu of providing passage at this location, ORM proposes to replace another culvert located along the Kappa Mainline Road where it intersects Deer Creek, a nearby tributary.

Contact Greg Apke, Fish Passage Coordinator, at Greg.D.Apke@state.or.us 503-947-6228

Read more . . .


ODFW seeks comment on fish passage waiver and exemption

May 27, 2020

SALEM, Ore. – ODFW seeks public comments on a fish passage waiver application and an exemption request by the Oregon Department of Transportation (ODOT). The requests are intended to address fish passage triggers at these three culverts replaced due to emergency conditions: 

Unnamed tributary to the North Fork Nehalem @ Highway 53, MP 11.4
Unnamed tributary to Vossburg Creek @ Highway 101, MP 48
Unnamed tributary to Rowdy Creek @ Highway 101, MP 111

These actions have triggered Oregon’s fish passage laws. Under the terms of the emergency repairs, ODOT must address fish passage requirements according to OAR 635-412-0035 by completing one of the following actions. 1.) Replace the culvert with one that meets fish passage criteria, 2.) Mitigate for the lost habitat, or 3.) Seek an exemption from fish passage requirements.

Contact Pete Baki, ODFW-ODOT Fish Passage Liaison, 4034 Fairview Industrial Dr SE, Salem, OR 97303, e-mail, Pete.Baki@state.or.us, or by calling (503) 947-6234 for the fish passage waiver application including Highway 101 MP 48, Highway 53 MP 11.4 and Acey Creek

Or

Katherine Nordholm, ODFW-ODOT Assistant Fish Passage Liaison, 4034 Fairview Industrial Dr SE, Salem, OR 97303, e-mail, Katherine.e.nordholm@state.or.us, or by calling (503) 947-6274 for the fish passage exemption application at Highway 101 MP 111.

Read more . . .

 

 
Project Highlight
Millicoma River

In the late 1950’s, road construction removed two bridges and filled in two river crossings on the East Fork of the Millicoma River in Coos County. The change blocked water to more than ½ mile of stream channel, moving the river into a narrow chute. Water passed through the new chute much more quickly than through the historic channel becoming a severe barrier to fall Chinook and partial barrier to other migratory species. ODFW, Weyerhaeuser, The Freshwater Trust, US Fish & Wildlife Service, Oregon Watershed Enhancement Board, and Coos Watershed Association partnered together to install two new bridges and fill the channelized chute moving the river back into the historic channel. The project is complete and fish have access through the the ½ mile of reconnected historical stream channel and more than 16 miles of habitat upstream.

View a time lapse one of the bridges being built and after the river was reconnected

 
 
 
 
 
 

For Fish Passage plan approvals, waivers, or exemptions, please contact Greg Apke, Fish Passage Coordinator, at Greg.D.Apke@state.or.us 503-947-6228 or Kregg Smith, Assistant Fish Passage Coordinator, at Kregg.M.Smith@state.or.us 503-947-6217.

2019 Statewide Fish Passage Priority List

Requirements


Fishway at Riley CreekSince 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.

  1. 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.

  2. 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:

  1. 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.

  2. 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):

  1. 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.

  2. ODFW completes a written Benefit Analysis (3 weeks).

  3. ODFW develops a Draft Agreement (1 week) which is then forwarded to the owner/operator for review, comment, and preliminary approval.

  4. 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.

  5. 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.

  6. 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).
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ODFW Bowman Dam FPW Net Benefit Analysis -06_01_2020
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