ORS 496.266: Environmental restoration weirs; rules.

(1) As used in this section and ORS 496.264: (a) “Ancient floodplain” means channel adjacent areas and surfaces constructed by fluvial processes that functioned as floodplains or areas for overbank deposition prior to channel incision. (b) “Environmental restoration weir” means one or more structures that are constructed: (A) For the purpose of delaying or slowing, but not preventing, streamflow to promote restoration of stream and habitat conditions; (B) Such that the structures do not store or appropriate water in a manner that would require a permit from the Water Resources Department; (C) To be no larger than necessary to cause overbank flooding onto the lands constituting the ancient floodplain during ordinary periods of high streamflow; and (D) From wood, earth, dirt, rock or other natural materials. (c) “Healthy native migratory fish population” means a population of native migratory fish that, as determined by the State Department of Fish and Wildlife: (A) Demonstrates appropriate life stages throughout the year; and (B) Reproduces at sufficient levels to be a self-sustaining population into the foreseeable future. (d) “Incised or eroded stream” means a stream that has been scoured by erosion to the extent that the channel bed elevation has lowered relative to its ancient floodplain and the stream has lost connectivity with the ancient floodplain, as characterized by: (A) The loss of natural wetland, riparian or meadow conditions in the adjacent surfaces; (B) The absence of overbank flooding or deposition during ordinary periods of high streamflow; (C) The loss of diversity of fish or other species; or (D) The presence of invasive dry land species that have encroached from adjacent uplands, including but not limited to sagebrush, bunch grass, juniper and pine. (e) “Native migratory fish” has the meaning given that term in ORS 509.580. (f) “Qualifying stream” means an incised or eroded stream, a designated reach of an incised or eroded stream or a designated set of adjacent reaches of an incised or eroded stream that, prior to commencement of a project authorized pursuant to subsection (2) of this section: (A) Has an estimated median monthly natural streamflow of less than one cubic foot per second during at least two months of the year; (B) Has not had a healthy native migratory fish population for at least three years prior to the time of authorization; and (C) Is incised or eroded to the extent that the channel bed elevation has lowered by two feet or more relative to the elevation of the ancient floodplain. (g) “Reach” means a section of a stream that is similar in flow topography and habitat characteristics and is between 50 and 500 feet in length. (h) “Summit of the Cascade Mountains” has the meaning given that term in ORS 321.805. (2) The State Department of Fish and Wildlife shall adopt by rule and administer a program for authorizing voluntary projects for stream restoration and habitat improvement through the construction of environmental restoration weirs. The department may only authorize a project under the program if: (a) The project involves construction of environmental restoration weirs on one or more qualifying streams located in any closed basin: (A) From which water does not flow to the Pacific Ocean; and (B) That is located east of the summit of the Cascade Mountains; (b) Construction of the environmental restoration weirs will be completed no later than July 1, 2031; and (c) The project complies with local floodplain regulations if the project is located within an area subject to floodplain management. (3) Rules adopted under subsection (2) of this section shall identify criteria for evaluating voluntary projects undertaken pursuant to the program. (4) If the department determines that native migratory fish are present in a qualifying stream prior to the date of construction of environmental restoration weirs, the person engaging in the proposed voluntary project shall provide fish passage pursuant to ORS 509.585. (5)(a) If the department determines that native migratory fish are not present in a qualifying stream prior to the date of construction of environmental restoration weirs, the person engaging in the proposed voluntary project is exempt from meeting the requirements of ORS 509.585. (b) If, after construction of environmental restoration weirs, the department determines that native migratory fish have returned to the qualifying stream, the department may require the person engaging in the authorized voluntary restoration project to: (A) Provide fish passage that: (i) Is economically practicable to the person engaging in the voluntary restoration project; and (ii) Can be constructed from locally available natural materials; or (B) Provide mitigation that, as determined by the department, provides a net benefit to native migratory fish. (6) For a period of up to 10 years after construction of the environmental restoration weirs is complete, the department: (a) Shall require the person that engaged in an authorized voluntary project to maintain the environmental restoration weirs for their stream restoration and habitat improvement values; (b) May require the person to engage in photo monitoring of the environmental restoration weirs; and (c) May, subject to subsection (9) of this section, require the person to allow a third party to engage in monitoring of the environmental restoration weirs. (7) The department shall, in coordination with the Water Resources Department, require the person to modify the environmental restoration weirs if the environmental restoration weirs are found: (a) By the Water Resources Department to result in injury to an existing water right; or (b) By the State Department of Fish and Wildlife to be having a significant detrimental impact on native migratory fish. (8)(a) Before authorizing a proposed voluntary project, the State Department of Fish and Wildlife shall coordinate with the Department of Transportation to consider any potential impacts of the project on transportation infrastructure or planned transportation infrastructure, including but not limited to potential impacts on roads, culverts and bridges. (b) The State Department of Fish and Wildlife, in coordination with the Department of Transportation, may at any time require the person engaging in the authorized voluntary restoration project to modify environmental restoration weirs if the environmental restoration weirs are found to adversely impact transportation infrastructure or planned transportation infrastructure. (9) If the State Department of Fish and Wildlife requires third-party monitoring of environmental restoration weirs under subsection (6)(c) of this section: (a) The third party must be chosen through mutual agreement between the person engaging in the voluntary restoration project and the department; (b) The person engaging in the voluntary restoration project may not unreasonably withhold consent for the third party to engage in monitoring; (c) The third-party monitoring may not result in a financial cost to the person engaging in the voluntary restoration project; and (d) The third party engaging in the monitoring must be covered by sufficient liability and casualty insurance. (10) Planting or removal of brush and trees from stream banks and riparian areas as part of an authorized voluntary project are not subject to riparian management requirements established under the Oregon Forest Practices Act. (11) Nothing in this section creates any new requirement or exemption with respect to obtaining a permit or certificate to use, store or appropriate water. [2021 c.63 §3] Sec. 7. The State Department of Fish and Wildlife shall adopt rules under section 3 of this 2021 Act [496.266] in time for the rules to become operative no later than one year after the effective date of this 2021 Act [May 21, 2021]. [2021 c.63 §7] Sec. 8. (1) No later than December 31, 2027, the State Department of Fish and Wildlife shall submit a report, in the manner provided by ORS 192.245, to the interim committees of the Legislative Assembly related to environment and natural resources that provides information summarizing the extent to which voluntary projects have been commenced and completed under the program established by the department pursuant to section 3 of this 2021 Act [496.266], and any known preliminary impacts of the voluntary projects. (2) No later than September 15, 2032, the State Department of Fish and Wildlife shall submit a report, in the manner provided by ORS 192.245, to the interim committees of the Legislative Assembly related to environment and natural resources on voluntary projects authorized under the program established by the department pursuant to section 3 of this 2021 Act. The report shall include: (a) Assessments of the conditions of qualifying streams affected by authorized voluntary projects, which assess stream conditions prior to construction of environmental restoration weirs as well as after construction of environmental restoration weirs; and (b) Recommendations, which may include recommendations for legislation, regarding potential amendment of section 3 (2) of this 2021 Act to allow the department to authorize voluntary projects in which construction of environmental restoration weirs will commence on or after January 2, 2036. [2021 c.63 §8]