justicedao/ipfs_state_laws huggingface dataset:
635-412-0001 Purpose of the Fish Passage Policy (1) The purpose of these rules is to further clarify and implement the State’s fish passage statutes (ORS 509.580 through 509.910) and the Department’s Climate and Ocean Change Policy (OAR 635–900–0001 through 635-900-0020) through the application of consistent standards. (2) It is the policy of the State of Oregon to provide for upstream and downstream passage of native migratory fish at artificial obstructions. (3) Changes in Oregon’s future climate make fish passage even more critical, and a lack of fish passage within watersheds may threaten the existence of some native migratory fish species. (4) It is therefore the intent of these rules to promote fish passage while recognizing cooperation and collaboration between public and private entities are necessary to accomplish the policy goal of providing fish passage for native migratory fish and to achieve the enhancement and restoration of Oregon’s native migratory fish populations, as envisioned by the Oregon Plan (ORS 541.898). Statutory/Other Authority: ORS 496.138 & ORS 509.585 Statutes/Other Implemented: ORS 496.012 & ORS 509.585 History: DFW 154-2022, adopt filed 12/19/2022, effective 01/01/2023
635-412-0010 Fish Passage Task Force (1) The Fish Passage Task Force has nine members who are appointed by the Director. (2) Three members represent interests subject to the obligation to install fish passage at facilities they install, own or operate; three members represent fishing, environmental or conservation interests, and three members represent the general public. (3) Members serve four year terms and are eligible for reappointment. (4) The Task Force shall: (a) Serve as the public advisory committee and advise the Director, Department, and Commission regarding rulemaking to implement the fish passage and exemption requirements consistent with applicable law ; (b) Prioritize projects from the statewide inventory of artificial obstructions for purposes of restoration and enforcement; (c) Recommend to the Director, Department, and Commission appropriate levels of funding and special conditions applicable to projects installing fish passage or alternatives to fish passage resulting in a net benefit to native migratory fish; (d) Select one of its members to serve as chair and one as vice chair; (e) Review and recommend to the Department or Commission, as applicable, which projects should be exempt; (f) Report semiannually to the joint legislative committee created under ORS 171.551, or to the appropriate interim legislative committee with responsibility for salmon restoration or species recovery, advising the committee on matters related to fish passage; (g) After public review and comment, review applications for exemptions of the fish passage requirement, and advise the Commission or Department, as applicable, as to whether an artificial obstruction should be deemed exempt pursuant to ORS 509.585(9); (h) Perform such other duties relating to fish passage as requested by the Director or Commission; (i) The Task Force shall meet at such times and places as may be determined by the chair or by a majority of members. (5) The Department’s Fish Passage Coordinator serves as staff for the Task Force. (6) The chair of the Task Force conducts the meetings of the Task Force, serves as the main contact point between the Department or Commission and the Task Force, and performs other duties as the Task Force sets. The vice chair of the Task Force shall serve as chair if the chair is unavailable to carry out their duties. (7) Task Force members may not receive compensation for services as a member of the Task Force; however, in accordance with ORS 292.495, a member of the Task Force may receive reimbursement for actual and necessary travel or other expenses incurred in the performance of official duties. Statutory/Other Authority: ORS 496.138 & ORS 509.585 Statutes/Other Implemented: ORS 496.012 & ORS 509.585 History: DFW 154-2022, amend filed 12/19/2022, effective 01/01/2023 DFW 10-2002, f. & cert. ef. 2-4-02
635-412-0030 Fish Passage Protests (1) A person owning or operating an artificial obstruction may request alternative dispute resolution at any point in the process of determining fish passage requirements. (2) The owner or operator of the artificial obstruction who objects to a determination made by the Department under these rules may file a protest with the Commission. Protests must be submitted in writing within 30 days from the date the Department posts the determination on its website and must include the grounds for protesting that determination. (3) The Commission may approve, deny, or modify the Department's proposed or final determination after sufficient opportunity for public review and comment. (4) If a protest is not filed within 30 days from the date the Department posts the determination from the Department, the Commission’s or Department's determination becomes a final order. Statutory/Other Authority: ORS 496.138 & ORS 509.585 Statutes/Other Implemented: ORS 496.012 & ORS 509.585 History: DFW 154-2022, amend filed 12/19/2022, effective 01/01/2023 DFW 112-2004, f. & cert. ef. 11-17-04 DFW 23-2003, f. & cert. ef. 3-26-03
635-412-0055 Application Material Any application for projects involving construction of environmental restoration weirs must utilize the Department’s application form and specifically describe how the project will meet all the eligibility criteria set forth in OAR 635-412-0050 and facilitate stream restoration and habitat improvement. The Department may require the application to include: (1) A description of the current habitat conditions, rationale for the project, and intended impact of the environmental restoration weirs, including whether beaver restoration is an intended outcome; (2) Information on the planned construction timing, location, and number of environmental restoration weirs in the qualifying stream; (3) Photographs of all the proposed environmental restoration weir construction sites sufficient to meet pre-project monitoring requirements; (4) A description of stream management and adjacent land use plans, descriptions of any efforts already undertaken to address historic factors contributing to habitat degradation and future efforts that will be implemented to protect habitat restoration; (5) Plans, drawings, or pictures documenting stream measurements including active channel width, height of ordinary high water line, height of ancient floodplain above stream bottom, and the size and material source and composition of the environmental restoration weirs; (6) Written documentation from the Oregon Water Resources Department (OWRD) stating: (a) Whether injury to other water rights is likely to occur if the proposal is implemented as described in the application; (b) Whether any manipulation of water during any phase of construction is likely to cause injury to any existing water right; and (c) Whether the project will require a permit from the OWRD; (7) Information on location and type of nearest downstream road crossing; and (8) Plans demonstrating fish passage meets the criteria set forth in OAR 635-412-0035, if the project is in a qualifying stream reach where native migratory fish are present. 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
635-415-0000 Purpose The purpose of these rules is to further the Wildlife Policy (ORS 496.012) and the Food Fish Management Policy (506.109) of the State of Oregon through the application of consistent goals and standards to mitigate impacts to fish and wildlife habitat caused by land and water development actions. The policy provides goals and standards for general application to individual development actions, and for the development of more detailed policies for specific classes of development actions or habitat types. Statutory/Other Authority: ORS 496.012, 496.138, 496.171, 506.109 & 506.119 Statutes/Other Implemented: ORS 496.012, 496.138, 496.171, 506.109 & 506.119 History: DFW 25-2000, f. 4-26-00, cert. ef. 5-1-00 DFW 47-1998, f. & cert. ef. 6-15-98 FWC 133-1991, f. & cert. ef. 11-19-91
635-415-0010 Fish and Wildlife Habitat Mitigation Policy It is the fish and wildlife habitat mitigation policy of the Oregon Department of Fish and Wildlife to require or recommend, depending upon the habitat protection and mitigation opportunities provided by specific statutes, mitigation for losses of fish and wildlife habitat resulting from development actions. Priority for mitigation actions shall be given to habitat for native fish and wildlife species. Mitigation actions for nonnative fish and wildlife species may not adversely affect habitat for native fish and wildlife. Statutory/Other Authority: ORS 496.012, 496.138, 496.171, 506.109 & 506.119 Statutes/Other Implemented: ORS 496.012, 496.138, 496.171, 506.109 & 506.119 History: DFW 25-2000, f. 4-26-00, cert. ef. 5-1-00 DFW 47-1998, f. & cert. ef. 6-15-98 FWC 133-1991, f. & cert. ef. 11-19-91
635-415-0015 Application of Fish and Wildlife Habitat Mitigation Policy (1) The Department shall work with regulatory and planning agencies, land management agencies, private developers, operators, public interest groups, and the public to implement this Fish and Wildlife Habitat Mitigation Policy. (2) The Department shall apply the requirements of this division when implementing its own development actions, and when developing recommendations to other state, federal, or local agencies regarding development actions for which mitigation for impacts to fish and wildlife habitat is authorized or required by federal, state, or local environmental laws or land use regulations. (3) In applying this policy, the Department shall identify and utilize the habitat protection and mitigation opportunities provided by applicable federal, state, and local environmental laws and land use regulations, and shall participate throughout the duration of these regulatory processes to coordinate Department mitigation requirements or recommendations with those of other agencies. If the regulatory authority of an agency provides for mitigation of cumulative or historic losses, the Department shall apply the standards of OAR 635-415-0025 in making its recommendations. (4) When making recommendations on local land use actions, the Department shall follow the provisions of its certified State Agency Coordination Program and OAR 635 division 405. (5) Unless required by statute, the Department may elect not to recommend or require mitigation for a development action if, in the opinion of the Department, the impacts to fish and wildlife habitat are expected to be inconsequential in either nature, extent, or duration; or if staff resources are not available. (6) Nothing in this policy shall be construed to vest authority in the Department where no such statutory or regulatory authority has been granted. Statutory/Other Authority: ORS 496.012, 496.138, 496.171, 506.109 & 506.119 Statutes/Other Implemented: ORS 496.012, 496.138, 496.171, 506.109 & 506.119 History: DFW 25-2000, f. 4-26-00, cert. ef. 5-1-00 DFW 47-1998, f. & cert. ef. 6-15-98 FWC 133-1991, f. & cert. ef. 11-19-91
635-418-0100 Purpose The purpose of this rule division is for the Department to designate regional dry maintenance time periods for conducting removal-fill activities in dry, traditionally maintained channels as defined in ORS 196.906-196.919 and OAR 603-095-4000 to OAR 603-095-4060. The dry maintenance time periods are designed to minimize potential impacts to the most vulnerable life stages of fish and wildlife species. Statewide review of the rules will occur on a periodic basis as warranted based on new information and adaptive management. Statutory/Other Authority: ORS 496.012, 496.164, 496.138, 506.109 & 196.906-196.919 Statutes/Other Implemented: ORS 496.012, 496.164, 506.109 & 196.906-196.919 History: DFW 13-2022, adopt filed 02/23/2022, effective 02/23/2022
635-418-0120 Variance Process A variance to conduct maintenance in dry, traditionally maintained channels outside of the regional dry maintenance time periods identified in 635-418-0110, may be requested through OAR 603-095-4045. The Department, on a project-by-project basis, will consider variations in climate, location, risk to fish and wildlife resources, project size and extent, and other factors when evaluating instances for work outside of the regional dry maintenance time periods. Statutory/Other Authority: ORS 496.012, 496.164, 496.138, 506.109 & 196.906-196.919 Statutes/Other Implemented: ORS 496.012, 496.164, 506.109 & 196.906-196.919 History: DFW 13-2022, adopt filed 02/23/2022, effective 02/23/2022
635-420-0000 Purpose The purpose of OAR 635, division 420 is to implement the provisions of Oregon Laws 1991, Chapter 735. These rules prescribe the standards for Department review of proposed chemical process mining operations for the purpose of developing conditions for protection of wildlife and their habitat, to further the Wildlife Policy (ORS 496.012) and Food Fish Management Policy (506.109) of the State of Oregon. Statutory/Other Authority: ORS 496.012 & 506.109 Statutes/Other Implemented: ORS 496.012 & 506.109 History: FWC 140-1991, f. & cert. ef. 12-26-91
635-420-0030 Standards for Wildlife Protection Chemical process mining operations shall use the best available, practicable and necessary wildlife protection technologies to maintain an objective of zero wildlife mortality. Wildlife protection measures shall meet or exceed the following standards which are necessary to protect wildlife: (1) Chemical processing solutions shall be applied to heap leach pads by drip-irrigation systems or other methods which preclude ponding or other conditions which could result in the ingestion of or exposure to chemical processing solutions by wildlife. (2) Chemical processing solutions shall be contained, or shall be covered in accordance with OAR 635-420-0040 and fenced in accordance with 635-420-0050 to preclude access by wildlife. (3) Associated wastewaters shall be maintained in a condition that is not harmful to wildlife or shall be covered in accordance with OAR 635-420-0040 and fenced in accordance with 635-420-0050 to preclude access by wildlife. (4) Electrical power lines and other transmission facilities shall be designed an constructed to prevent electrocution hazard to wild birds by incorporating features such as armless poles, vertical separation of wires, pole extensions perches or line insulators. Designs shall be consistent with the specifications contained in “Suggested Practices for Raptor Protection on Powerlines” (Raptor Research Report No. 4, Raptor Research Foundation, Inc., 1981) or with equivalent specifications approved by the Department. (5) Access to a chemical process mine by mine employees and the public shall be controlled to minimize harassment of wildlife and collisions between vehicles and wildlife. On publically owned lands, these controls shall be developed in conjunction with, and shall be subject to the approval of, the applicable public land management agency. [Publications: Publications referenced are available from the agency.] Statutory/Other Authority: ORS 496.012 & 506.109 Statutes/Other Implemented: ORS 496.012 & 506.109 History: FWC 140-1991, f. & cert. ef. 12-26-91
635-420-0040 Minimum Standards for Covering or Containment (1) All conveyances for chemical processing solutions shall be covered or contained to preclude access by wildlife. Conveyances for associated wastewaters shall be covered or contained to preclude access by wildlife, or shall be maintained in a condition that is not harmful to wildlife. (2) All uncontained chemical processing solution ponds or impoundments shall be covered to preclude access by wildlife. (3) Covers and containers shall preclude access to chemical processing solutions and associated wastewaters by wildlife. At a minimum, cover designs shall be based on the following factors: (a) Wind and snow loads at a mean recurrence interval of 100 years; (b) Size, shape and location of the area to be covered; (c) Species and behavior of wildlife at the mine site; (d) Direction of prevailing winds. (4) All covers, as well as their supports and attachments, shall be made of durable ultraviolet resistant materials. (5) The mesh openings of netting and other permeable covers shall be no larger than one square inch unless the Department determines that a larger mesh size is adequate to exclude birds, bats and other wildlife. (6) Netting and netting support systems shall meet the following minimum specifications: (a) Netting shall be solid-strand polypropylene, high density polyethylene or other material of equivalent or better strength, durability and resistance to penetration by wildlife; (b) Netting shall be black or another color which does not attract resident or migratory birds and bats; (c) Support cable shall be coated to minimize net abrasion; (d) Sections of netting shall be fastened together or terminated on cables in a manner which precludes access to processing solutions by wildlife. The following minimum specifications shall apply: (A) Where sections of netting are fastened together, they shall be overlapped a minimum of six inches and attached at intervals no greater than six inches; (B) Where a section of netting is terminated on a support cable or a perimeter ground cable, the netting shall be folded around the cable, overlap itself a minimum of six inches, and be attached to itself at intervals no greater than six inches; (C) Where sections of netting that are terminated on support cables lie adjacent to one another, the support cables shall be fastened together at intervals sufficient to prevent gaps greater than one inch wide between the support cables; (D) Rope made of polypropylene or other material of equivalent or better strength, durability and ultraviolet resistance shall be strung above the netting to minimize net ship in high winds; (E) Netting shall be fastened to perimeter ground cables which are securely anchored to the ground. Statutory/Other Authority: ORS 496.012 & 506.109 Statutes/Other Implemented: ORS 496.012 & 506.109 History: FWC 140-1991, f. & cert. ef. 12-26-91
635-420-0050 Minimum Standards for Fencing Fencing which meets the following minimum specifications shall be placed around all chemical processing solutions and associated wastewaters which are not contained: (1) Fences shall be a minimum of eight feet in height. Higher fences may be required by the Department if necessary due to the characteristics of the mine site, including but not limited to slope or topography or the wildlife species identified in the baseline data. (2) A ground cloth of a minimum of 0.5 inch mesh shall cover the lower 30 inches of the fencing and shall extend below and horizontal to the ground surface for a distance sufficient to exclude burrowing mammals. The ground cloth shall be galvanized hardware cloth or other material of equivalent or better strength, durability and resistance to penetration by wildlife. The Department shall determine appropriate mesh sizes, depths and horizontal distances based on the soil horizons and wildlife species identified in the baseline data. (3) If fencing materials other than chain link or cyclone fencing are used, the following additional minimum specifications shall be followed: (a) Wooden posts not less than 11 feet 6 inches long or #133 studded “T” steel posts not less than ten feet long shall be used as line posts. When steel posts are used, every seventh post shall be wooden; (b) Wood posts shall have a top diameter of not less than five inches and shall be free from defect, decay or damage. They shall be treated for at least three feet at the base with a wood preservative to prevent decay or insect damage; (c) Wood posts shall be sunk at least two feet six inches into the ground and set no more than one rod apart. Posts shall be securely braced at the corners, angles, and at intervals along the line; (d) The fence shall be constructed of 14.5 gauge woven wire with vertical stays every six inches and no less than 17 horizontal line wires. The bottom of the fence shall be at ground level. The wire shall be tightly stretched and firmly stapled with 1.5-inch staples at the rate of ten staples per post. Statutory/Other Authority: ORS 496.012 & 506.109 Statutes/Other Implemented: ORS 496.012 & 506.109 History: FWC 140-1991, f. & cert. ef. 12-26-91
635-420-0070 Wildlife Injury and Mortality Reporting (1) The permittee is responsible for monitoring and maintaining the protection measures described in the wildlife protection plan on an ongoing and constant basis throughout the lifetime of the chemical process mine, including periods of temporary and seasonal closure. (2) The permittee shall maintain a record of all wildlife injury and mortality that occurs in association with the chemical process mine. This record shall include a photographic record of injury and mortality using a standard protocol approved by the Department. (3) The permittee shall submit a report of wildlife injury and mortality to the designated Department representative on the Project Coordinating Committee and the Technical Review Team on a quarterly basis starting from the date of issuance of the permit. The report shall be submitted on forms provided by the Department. If no injury or mortality occurs, the report must so state. The Department may require more frequent reporting pending correction of any condition or practice existing at a chemical process mine which is or can reasonably be expected to be harmful to wildlife, or any violation of any requirement of OAR 635-420-0000 through 635-420-0110, or any permit condition designed to protect wildlife. (4) The permittee shall report the following wildlife injuries or mortalities by telephone to the designated Department representative on the Technical Review Team by the beginning of the next working day following their occurrence or observation: (a) Injuries or mortalities which may be associated with exposure to chemical processing solutions or associated wastewater; (b) Injuries or mortalities which may be associated with wildlife protective measures; (c) Injuries or mortalities of state or federally listed threatened or endangered species or state sensitive species. Statutory/Other Authority: ORS 496.012 & 506.109 Statutes/Other Implemented: ORS 496.012 & 506.109 History: FWC 140-1991, f. & cert. ef. 12-26-91