635-412-0050 Eligibility Criteria (1) If the Department determines, or the applicant assumes, that native migratory fish are present in a qualifying stream, prior to construction of the environmental restoration weir the applicant shall obtain Department approval of a fish passage plan that is consistent with criteria set forth in OAR 635-412-0035. (2) 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 applicant is exempt from the requirements of ORS 509.585 and applicable provisions of OAR 635, Division 412, unless and until the Department determines that native migratory fish have returned to the qualifying stream. (3) If, after construction of an environmental restoration weir, the Department determines that native migratory fish have returned to the qualifying stream, the Department may require the owner of that environmental restoration weir to either: (a) Obtain Department approval of a fish passage plan that: (A) Can be constructed from locally available natural materials; and (B) Includes modifications recommended by the Department unless the owner of the environmental restoration weir demonstrates to the Department that the proposed modifications will not be economically practicable. To determine if the modifications are economically practicable, the Department may evaluate information including but not limited to: (i) the cost of the original project; (ii) the cost of the recommended modifications; and (iii) the habitat value of the restoration project; or (b) Obtain Department approval of mitigation that provides a net benefit to native migratory fish consistent with ORS 509.585 and criteria set forth in OAR 635-412-0040. (c) If the Department requires the owner of an environmental restoration weir to obtain Department approval of a fish passage plan or mitigation proposal pursuant to this subsection (3), the owner of the environmental restoration weir must submit a sufficient plan or proposal, as applicable, within 60 days unless the Department determines an extension is warranted. (4) The Department may authorize a project for stream restoration and habitat improvement through the construction of environmental restoration weirs only if: (a) The project involves construction of environmental restoration weirs on one or more qualifying streams located in any historically 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; (c) The project complies with local floodplain regulations if the project is located within an area subject to floodplain management; (d) Construction of environmental restoration weirs has not begun prior to the date of the Department’s approval; (e) The project is unlikely to adversely impact transportation infrastructure or planned transportation infrastructure as determined by the Oregon Department of Transportation; (f) The project will not store or appropriate water in a manner that would require a permit from the Oregon Water Resources Department; (g) The Department has approved a fish passage plan for the project if such approval is required by section (1) of this rule; (h) The planned project, including but not limited to timing of construction, material, size, location, and other information contained in the application regarding historic features on landscape and rationale for the project, demonstrate, as determined by the Department, that the project is likely to produce the intended ecological benefits of stream restoration and habitat improvement; and (i) The Department determines that the environmental restoration weir is no larger than necessary to cause overbank flooding during ordinary periods of high streamflow. Statutory/Other Authority: ORS 509.580, ORS 509.585 & HB 2298 (2021) Statutes/Other Implemented: HB 2298 (2021) History: DFW 31-2022, adopt filed 03/23/2022, effective 03/23/2022