635-400-0020 Standards for Selection of Streams or Stream Reaches for Instream Water Right Applications When applying for instream water rights the Department shall use the following resources and standards for prioritizing waterways: (1) Fish and wildlife species plans, basin and subbasin plans, management objectives, statutes, administrative rules and Commission policies shall be used to determine the waterway priority for applying for instream water rights. (2) Highest priority waterways for instream water right applications shall have one or more of the following conditions existing at the time of application: (a) State or federal sensitive, threatened or endangered fish or wildlife species, or important populations of native resident or anadromous fish, as defined by fish species plans, basin and subbasin plans, management objectives, other Commission policies, statutes, administrative rules, treaties or other legal agreements; (b) Important populations of native wildlife species, as defined by wildlife species plans, management objectives, other Commission policies, statutes, administrative rules, treaties or other legal agreements; (c) Court, Legislature or Commission mandated priorities, including all protected areas as defined by the Northwest Power Planning Council’s protected area designations as adopted in August 1988; (d) State Scenic Waterways or Federal Wild and Scenic Rivers; (e) One of the conditions in subsections (2)(a) through (d) of this rule exists and a potential threat to the fish or wildlife resource is identified, including the threat to aquatic and fish life, wildlife and fish and wildlife habitat by cumulative impacts from out-of-stream uses of water. (3) An instream water right application may also be requested to conserve, maintain or enhance one or more of the following fish or wildlife habitats or functions of a waterway by protecting instream flows or water surface elevations that provide for: (a) Passage of adult or juvenile fish; (b) Access to important spawning or rearing areas; (c) High quality critical rearing areas; (d) Protection of incubating fish eggs and alevins; (e) Flushing stream systems of sediment and for gravel transport and recruitment; (f) Populations of aquatic organisms and other aquatic life to provide sufficient food for fish and wildlife; (g) Breeding or wintering migratory bird habitat, furbearing mammal habitat, and other wildlife habitats; (h) Maintenance of riparian and wetland habitats; (i) Water quality for fish or wildlife, including, but not limited to, factors such as limiting or diluting sediment loads, maintaining correct water temperature and increasing dissolved oxygen levels; (j) Protection of inflow to standing water and to maintain lake, wetland and other standing water surface elevations; (k) Protection of habitat improvement investments and potential sites for habitat improvements; (l) Special habitat features within and adjacent to the waterway which may be critical to fish or wildlife species life cycles; (m) The fish and wildlife values for which a state Scenic Waterway of federal Wild and Scenic River was established. (4) The Department shall conserve, maintain or enhance angling, hunting and nonconsumptive recreational uses of fish and wildlife by requesting instream water right applications through Parks (see OAR 635-400-0040). Statutory/Other Authority: ORS 496 & 537 Statutes/Other Implemented: ORS 496 & 537 History: FWC 110-1989, f. 10-24-89, cert. ef. 10-28-89