635-412-0065 Monitoring and Reporting (1) The owner of an environmental restoration weir is responsible for maintaining the structure as approved, and monitoring and reporting on the habitat conditions as specifically required by this rule. (2) Monitoring and reporting shall consist of fixed photo-point monitoring of each environmental restoration weir, or if approved by the Department, high resolution video footage of each environmental restoration weir as a substitute for such fixed-point monitoring. Photo monitoring shall: (a) Be established prior to construction of the environmental restoration weir; (b) Be taken from established and consistent sites before construction and after construction during high and low water periods each year for 10 years; (c) Show the environmental restoration weir from both sides of the qualifying stream; (d) Show upstream, downstream stream, and riparian habitat conditions; and (e) Be submitted to the Department annually for 10 years post construction. (3) If the Department requires third-party monitoring as a condition of approval. (a) Monitoring will only be conducted if: (A) The third party is chosen through mutual agreement between the owner of the environmental restoration weir and the Department; (B) The owner of the environmental restoration weir 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 owner of the environmental restoration weir; and (D) The third party engaging in the monitoring must be covered by sufficient liability and casualty insurance. (b) Monitoring may include gathering information on applicable habitat and stream metrics including temperature data, water quality, stream discharge measurements, habitat survey data, invertebrate sampling, riparian vegetation surveys, pool area measurements, floodplain area engagement, fish sampling, dissolved oxygen, wildlife responses, or other land responses associated with the environmental restoration weirs. (4) The Department shall require the owner of the environmental restoration weir to modify or remove the environmental restoration weir if it is found: (a) By the Oregon Water Resources Department to result in injury to an existing water right; (b) By the Department to have a significant detrimental impact on native migratory fish; or (c) To have been modified beyond the original authorized design specification to the point where the project no longer meets the criteria set forth in OAR 635-412-0050(4). (5) The Department, in coordination with the Oregon Department of Transportation, may at any time require the owner to modify environmental restoration weirs if the environmental restoration weirs are found to adversely impact transportation infrastructure or planned transportation infrastructure. (6) The Department shall maintain a database of projects that apply for approval under this program. (a) No later than December 31, 2027, the Department shall submit a publicly available 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 projects have been commenced and completed under OAR 635-412-0045 through 635-412-0065. (b) No later than September 15, 2032, the Department shall submit a publicly available report, in the manner provided by ORS 192.245, to the interim committees of the Legislative Assembly related to environment and natural resources on projects authorized under OAR 635-412-0045 through 635-412-0065. The report shall include: (A) Assessments of the conditions of qualifying streams affected by authorized projects, which assess stream conditions prior to construction of environmental restoration weirs as well as after construction of environmental restoration weirs; projects will be evaluated on factors including: (i) Number and location of environmental restoration weirs; (ii) Photo monitoring of habitat conditions before and after the construction of the environmental restoration weir; (iii) Professional opinion of change in habitat quality, water quantity and quality, fish distribution, health of native migratory fish populations; and (iv) Any habitat data provided by the owner of the environmental restoration weir including temperature monitoring, stream characteristics, flow measurements, fish surveys, riparian vegetation, floodplain connectivity or other observations made in association with the construction of restoration weirs. (B) Recommendations, which may include recommendations for legislation, to allow the Department to authorize projects in which construction of environmental restoration weirs will commence on or after January 2, 2036. (c) The Department will provide the Fish Passage Task Force with draft reports for review prior to reporting to the Legislature. 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