OAR 635-412-0025: Fish Passage Waivers and Exemptions

(1) The Commission (or Department as applicable) may grant exemptions from fish passage requirements at an artificial obstruction if it is determined that: (a) A lack of fish passage has been effectively mitigated; (b) The owner or operator has received a legal waiver for the artificial obstruction from the Commission or the Department; or (c) There is no appreciable benefit to providing fish passage. (2) Waivers from fish passage requirements shall be granted for an artificial obstruction if the Commission (or Department, as applicable) determines that mitigation rather than fish passage proposed by the person owning or operating the artificial obstruction provides a net benefit to native migratory fish. (3) Net benefit to native migratory fish is determined by comparing the benefit to native migratory fish that would occur if the artificial obstruction had fish passage to the benefit to native migratory fish that would occur as a direct result of the proposed mitigation actions. To qualify for a waiver of the requirement to install fish passage, proposed mitigation must result in a benefit to native migratory fish greater than the benefit to such species that would be provided by fish passage at the artificial obstruction. The net benefit determination shall be based upon conditions that exist at the time of comparison and should consider future conditions (e.g., climate change). (4) Waivers shall be valid so long as the owner or operator continues to provide the agreed-upon mitigation until the next fish passage trigger at the artificial obstruction or until the Commission or Department determines that circumstances have changed such that the waiver requirements no longer apply, pursuant to ORS 509.585(9)(b). (5) Exemptions granted under subsection (1)(c) of this rule shall be valid only so long as conditions that justified that exemption do not change, except if: (a) That exemption has expired; (b) A trigger occurs with respect to the artificial obstruction subject to that exemption; or (c) The Commission or Department determines that exemption should not be renewed . (6) At least once every seven years, the Department shall review, exemptions under subsection (1)(c) of this rule to determine whether such exemptions should be renewed. An exemption granted as a result of an action which triggered fish passage requirements under OAR 635-412-0020(2) tolls the trigger event until the exemption is revoked. Prior to a seven-year review, exemptions under subsection (1)(c) of this rule may be reviewed by the Commission or Department. (7) To obtain an exemption from fish passage requirements, an owner or operator of an artificial obstruction shall obtain from and submit to the Department an application for either a waiver under subsection (1)(a) or an exemption under section 1(c) of this rule. (8) Based on application review, verification of the information in the application and of site-specific knowledge, Department staff shall provide a written benefit analysis of whether the proposal in the application meets the applicable requirements. If there is some level of passage at the artificial obstruction, but it does not meet the requirements of OAR 635-412-0035, the effective level of passage shall be factored into the Department's benefit analysis as a reduction in required mitigation measures . (9) To receive a waiver, an owner or operator of an artificial obstruction shall enter an agreement with the Commission (or Department as applicable) that clearly describes timelines, duties, responsibilities, and options regarding the required mitigation. The agreement shall state that the mitigation shall be completed prior to completion of or by the end of the same in-water work period as the action which triggered fish passage requirements under OAR 635-412-0020, unless the Commission or Department finds that additional time is necessary and appropriategiven the size and scope of the project; or to coordinate with requirements of federal proceedings. (10) The Commission or Department may require additional mitigation associated with a waiver if the mitigation cannot be or is not completed within the required time frame set forth in the agreement prescribed by subsection (9) of this rule. (11) Once the application, Department’s written benefit analysis, and a draft agreement are completed, the exemption determination shall be made by: (a) The Department: (A) If it determines that the total stream distance, including tributaries, affected by the artificial obstruction for which the exemption under section 1(a) and 1(b) is being sought is less than or equal to 1 mile of current native migratory fish distribution ; (B) For all exemptions proposed to have no appreciable benefit under section 1(c) of this rule; and (C) For re-authorization of an existing hydroelectric project subject to ORS 543A.030 to 543A.055 and not subject to federal hydroelectric relicensing; or (b) The Commission: (A) In all other instances; or (B) If the Department refers a decision to the Commission. (12) The decision to grant an exemption shall include the determination described in subsection (8) of this rule as well as approval of the agreement documenting applicable exemption conditions. (13) The Department may amend or approve changes to the agreement if the changes do not affect the benefit analysis and after a public review and recommendation by the Fish Passage Task Force. (1 4 ) In addition to the Fish Passage Task Force, the Department shall notify the public and provide an opportunity to review and comment on the owner or operator’s request at least three weeks prior to an exemption determination. (15) The Commission or Department, as applicable may provide further public comment prior to a decision on whether an exemption should be granted. (16) The Department shall maintain a database of the locations of exempted artificial obstructions and mitigation.