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Fish FISH DIVISION
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Fish Passage

ODFW Fish Passage Administrative Rule Revision Initiative – Public Participation and Comment Solicitation

March 5, 2021

SALEM, Ore. – ODFW has initiated a fish passage administrative rule revision process. Aligning the state’s passage rules with the ODFW Climate and Ocean Change Policy is a driving force behind this initiative. Oregon's Fish Passage Task Force, the Department’s public advisory board, will function as the Rules Advisory Committee (RAC).  ODFW and the RAC sub-committee and will host a series of public meetings to identify and discuss draft rule revisions for consideration. The Oregon Fish and Wildlife Commission will consider final draft rule revisions later this year during a regularly scheduled public meeting where comment or testimony can be provided.
 
Public participation and involvement is encouraged. To submit public comment on draft rule revisions for consideration by the RAC, an online comment form has been developed and is available here. In addition, the RAC subcommittee and the Department have planned bi-monthly virtual public meetings scheduled every other Tuesday from 2-4pm beginning March 9th through June 1st.  Members of the public interested in participating or viewing these virtual meetings can access them at Join Skype Meeting. If you do not have access to the internet, written comments can be mailed to Greg Apke, Oregon Department of Fish and Wildlife 4034 Fairview Industrial Drive, Salem Or 97302

The nine-member Task Force meets regularly to advise ODFW and the Oregon Fish and Wildlife Commission on fish passage policies and issues. Task Force members represent water users and owners-operators of artificial obstructions, fisheries and conservation interests, and the general public-at-large. Additional information on the Task Force and the ODFW Fish Passage Program is available on the ODFW website or by contacting Greg Apke, ODFW Fish Passage Program Coordinator, at (503) 947-6228 or ODFW.Passagerules@odfw.oregon.gov.

ODFW has extended the fish passage Administrative Rule revision suggestions from April 9, 2021 and will accept suggestions through May 7, 2021.

Rules Advisory Committee (RAC) Meeting Schedule, Agenda and Minutes (pdfs)

All meetings are all virutal and are on Tuesdays from 2-4pm

Meeting Dates Virtual Meeting Link Agenda (pdf) Meeting Minutes (pdf)

March 9th

Join Skype Meeting Agenda Minutes
March 23rd Join Skype Meeting Agenda  
April 6th - Cancelled Cancelled Cancelled Cancelled
April 20th Join Skype Meeting Cancelled Cancelled
May 4th Join Skype Meeting Cancelled Cancelled
May 18th Join Skype Meeting    
June 1st Join Skype Meeting    

 

 

 

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

State of Oregon Fish Passage Approvals for Instream Habitat Restoration Actions

Photo by Nick Calabrese

Oregon Department of Fish and Wildlife (ODFW) has developed new fish passage policy guidance and project review procedures for instream habitat restoration projects designed to specifically mimic instream natural habitat features created by beavers and beaver dams. The state’s fish passage policy (ORS 509.585) administered by ODFW requires owners-operators of artificial obstructions which include channel-spanning habitat restoration structures, to notify and submit project design details for ODFW fish passage review and approval. In some instances these fish passage rules and regulations deter or delay instream habitat restoration activities. The primary goal of this new policy guidance bulletin (see below) is to streamline and expedite the state’s fish passage review and approval procedures for instream habitat restoration projects designed and implemented to specifically mimic natural habitat features created by beaver and beaver dams. The policy guidance bulletin clarifies when ODFW’s fish passage approval is required for instream habitat restoration actions, including but are not limited to Beaver Dam Analogues (BDA), Vertical Post Structures (VPS), Post-Assisted Log Structures (PALS), and Artificial Beaver Dams (ABDs). The bulletin describes the ODFW fish passage review and approval procedures for different instream habitat restoration activities and defines expedited timelines associated with fish passage permit acquisition.
 
The primary tenants of this new policy guidance bulletin and the information provided below are to provide regulatory incentives realized through an expedited ODFW fish passage review and approval process for specific instream habitat restoration activities developed to create complex instream fish habitats that simulate and mimic natural habitat features created by beaver dams, while simultaneously constructing physical habitat features that encourage and promote beaver dam construction and/or re-establishment.

The primary goals and objectives of the information provided by these resources are to provide habitat restoration practitioners and project proponents fundamental planning and design guidance information on low risk, low cost and low impact instream habitat restoration actions that can be hand-built, permeable, low-profile, temporary, and use untreated organic materials that mimic function habitat created by natural beaver dam and will be maintained to not become native fish migration impediments.

Restoration Guidance Documents

  1. Pollock, M.M., G.M. Lewallen, K. Woodruff, C.E. Jordan and J.M. Castro (Editors) 2018. The Beaver Restoration Guidebook: Working with Beaver to Restore Streams, Wetlands, and Floodplains. Version 2.01. Online@: OFWO - Beaver Restoration
  1. Wheaton J.M. et al. 2019 Low-Tech Process-Based Restoration of Riverscapes Design Manual Version 1.0 Riverscapes Restoration Design Manual (pdf)

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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