reglab/statecodes huggingface dataset:
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0005 - Definitions

Current through Register Vol. 63, No. 7, July 1, 2024
For the purposes of OAR
				635-405-0000 through
				635-405-0045 only:
(1) "Acknowledged Comprehensive Plan" as
			 defined in OAR 660-030-0005(1)
			 and adopted herein means a comprehensive plan and land use regulations or plan
			 or regulations amendment which comply with the goals as provided in ORS
			 197.251,
			 197.640 to
			 197.649, and
			 197.625.
(2) "Agency consistency with Comprehensive
			 Plans" as defined in OAR
			 660-030-0005(7)
			 and adopted herein has the same meaning as the term "compatibility" as provided
			 in section (9) of this rule and
			 660-030-0070.
(3) "Agency Coordination Program" as defined
			 in OAR 660-030-0005(3)
			 and adopted herein means the submittal made by a state agency to the DLCD
			 pursuant to ORS 197.180(2)(a)-(d)
			 and OAR Chapter 660, division 30.
(4) "Aquatic Habitat" means the waters which
			 will support fish or other organisms which live in water. Aquatic habitat
			 includes the adjacent land area and vegetation (i.e., riparian habitat) that
			 provides shade, food, and/or protection for those organisms.
(5) "Big Game Range" means the geographic
			 area occupied by deer, elk, cougar, black bear, mountain sheep, mountain goat,
			 moose, silver gray squirrel, or antelope, often on a seasonal basis. Big game
			 range consists of one or all of the following:
(a) "Summer Range" means a geographic area
			 used by big game animals during the summer, usually at a higher elevation and
			 generally covering a larger land area than winter range; and
(b) "Transitional Range or Travel Corridor"
			 means a route or geographic area that is used by big game animals between
			 summer and winter range, usually characterized as a band or belt of suitable
			 vegetation and terrain that provides protective cover. Transitional range often
			 overlaps both summer and winter range; and
(c) "Winter range" means a geographic area
			 occupied by big game animals from late fall through early spring. Winter range
			 is usually smaller in area and at lower elevations than summer range, and has
			 vegetation and terrain that minimizes the effects of winter stress on big game
			 animals.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0010 - Applicability

Current through Register Vol. 63, No. 7, July 1, 2024
(1) The provisions
			 of OAR 635-405-0000 through
			 635-405-0045 shall apply to
			 actions taken by the Department when considering amendments to existing
			 programs described in section(3) of this rule.
(2) The provisions of OAR
			 635-405-0000 through
			 635-405-0045 shall apply to the
			 Department programs and actions described below, and to any other programs or
			 actions subsequently determined to have a significant effect on land use
			 pursuant to ORS 197.180 and OAR
			 660-030-0075.
(3) The provisions of OAR
			 635-405-0000 through
			 635-405-0045 shall apply to the
			 following Department programs and actions:
(a) Issuing permits for:
(A) Private salmon hatcheries;
(B) In-water explosives or harmful
			 substances.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0015 - Compliance with the Statewide Planning Goals and Compatibility with Acknowledged Comprehensive Plans and Land Use Regulations

Current through Register Vol. 63, No. 7, July 1, 2024
Prior to undertaking any action or program listed in OAR
				635-405-0010, the Department
				shall find that the program or action complies with the statewide planning
				goals and is compatible with applicable acknowledged comprehensive plans and
				land use regulations. The Department shall make its goal compliance and plan
				compatibility findings in accordance with OAR
				635-405-0000 through
				635-405-0045 and other
				applicable rules, and the Department's certified state agency coordination
				program, which is hereby adopted by reference.
Stat. Auth.: ORS Ch. 197 & 496
Stats. Implemented: ORS Ch. 197 &
				  496
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0020 - Compliance with the Statewide Planning Goals

Current through Register Vol. 63, No. 7, July 1, 2024
(1) The Department shall attempt to achieve
			 goal compliance whenever possible by taking actions that are compatible with
			 the acknowledged comprehensive plans of the applicable local governing
			 body.
(2) An action within a "land
			 use program" of the Department is considered to be in compliance when such
			 action is compatible with the acknowledged comprehensive plan and land use
			 regulations of the applicable local governing body.
(3) The Department will achieve compliance by
			 acting compatibly with applicable acknowledged comprehensive plans; however,
			 should a situation arise which requires direct goal findings pursuant to OAR
			 660-030-0065(3),
			 the Department shall adhere to the following procedure:
(a) Confirm that a situation exists pursuant
			 to OAR 660-030-0065(3)
			  requiring the Department to adopt findings
			 of compliance with one or more of the statewide planning goals;
(b) Identify the specific statewide planning
			 goal(s) or goal requirements the Department must address;
(c) Consult directly with the affected
			 jurisdiction(s);
(d) Request
			 interpretive guidance from the DLCD and the Attorney General's
			 office;
(e) Rely on any relevant
			 Goal interpretations for state agencies adopted by the LCDC under OAR Chapter
			 660;
(f) Adopt any necessary
			 findings to assure compliance with the statewide planning goals.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0025 - Compatibility with Acknowledged Comprehensive Plans and Land Use Regulations

Current through Register Vol. 63, No. 7, July 1, 2024
The following procedure is intended to assure that a Department
				program or action determined to affect land use is compatible with the
				acknowledged comprehensive plans and land use regulations of the applicable
				local governing body:
(1) Except where
			 it is necessary for the Department to adopt findings for compliance with the
			 statewide planning goals, the Department shall achieve goal compliance by
			 acting compatibly with acknowledged comprehensive plans and land use
			 regulations. To make the necessary determinations of compatibility for a
			 Department project or action affecting land use, the Department shall rely on
			 the following two procedures:
(a) A copy of
			 the local land use permit or equivalent documentation from the applicable local
			 governing body or its designee that the proposed project or action has received
			 land use approval; or
(b) A letter
			 or some other form of verification from the applicable local governing body or
			 its designee stating that the proposed project or action is permitted under the
			 jurisdiction's comprehensive plan but does not require specific land use
			 approval.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0030 - Dispute Resolution

Current through Register Vol. 63, No. 7, July 1, 2024
(1) The
			 Department shall attempt to resolve all disputes regarding land use issues by
			 direct contact with the applicable local governing body(ies). Whenever
			 possible, Department efforts to avoid and resolve potential land use conflicts
			 concerning a specific use or action shall be conducted prior to and through
			 local government land proceedings. These efforts may include Department
			 participation in pre-application meetings and conflict mediation activities,
			 and provision of technical information and assistance to project applicants as
			 well as the applicable local governing body(ies).
(2) In the event the Department and an
			 applicable local governing body do not agree that a Department program or
			 action, or local governing body action is compatible with the applicable
			 acknowledged comprehensive plan(s) and land use regulations, the Department
			 will attempt to resolve the dispute through the following procedures:
(a) Department staff, where appropriate, may
			 request meetings with planning staff or other representatives of the local
			 government to discuss:
(A) The ways in which
			 the proposed Department program or action can be made compatible with the
			 jurisdiction's comprehensive plan and land use regulations, including possible
			 modfication of the proposed program or action, while achieving the Department's
			 desired results;
(B) Existing or
			 possible Department alternative actions, including withdrawal of the
			 proposal.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0035 - Compliance and Compatibility of New or Amended Land Use Programs

Current through Register Vol. 63, No. 7, July 1, 2024
(1) LCDC
			 certification of the Department's SAC Program signifies that the Department has
			 fulfilled its statutory state agency coordination responsibilities. The
			 Department shall implement the following procedures to assure that new
			 Department programs and any amendments to existing Department programs
			 identified in OAR 635-405-0010 shall conform to
			 the Department's certified SAC Program and the requirements in ORS
			 197.180 and OAR Chapter 660,
			 Division 030.
(2) The Department
			 shall not amend its certified state agency coordination program, adopt new
			 programs, or amend existing programs identified in OAR
			 635-405-0010 without notifying
			 the DLCD in accordance with
			 660-030-0075.
(3) Such notice to adopt or amend a program
			 or regulation as described in section (2) of this rule shall be provided to the
			 DLCD in writing not less than 45 days before Department adoption is scheduled
			 to occur.
(4) The notice provided
			 to DLCD shall demonstrate that the proposed new adoption or amendment:
(a) Does not affect land use; or
(b) Affects land use and goal compliance and
			 comprehensive plan compatibility shall be assured through adherence to existing
			 procedures in the Department's certified SAC Program; or
(c) Affects land use, but is not covered by
			 regulations and procedures in the Department's certified SAC program. In this
			 case, the notice shall include an explanation of how the Department shall
			 assure goal compliance and comprehensive plan compatibility in accordance with
			 the applicable provisions of OAR
			 660-030-0075.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0040 - Coordination with Affected State and Federal Agencies and Special Districts

Current through Register Vol. 63, No. 7, July 1, 2024
The Department Habitat Conservation Division Land Use
				Coordinator or other appropriate Department employees shall coordinate with
				affected state and federal agencies and special districts to discuss wildlife
				habitat inventory and habitat protection and management standards. The
				information and assistance provided may include, but is not limited to:
(1) Delineation (i.e., boundaries and
			 locations) of significant wildlife habitat, such as:
(a) Big game ranges;
(b) Bird habitat sites;
(c) Threatened and endangered habitat as
			 defined in OAR 635-100-0100 to OAR
			 635-100-0130;
(d) Riparian habitat/land;
(e) Wetlands;
(f) Aquatic habitat;
(g) Sensitive species habitat;
(h) Other significant wildlife habitats not
			 listed above.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 405 - STATE AGENCY COORDINATION PROGRAM › Section 635-405-0045 - Cooperation and Technical Assistance to Local Governments

Current through Register Vol. 63, No. 7, July 1, 2024
Subject to statutory limitations, the Department may provide
				technical assistance and information to local governments through its County
				Coordinators as availability and resources permit. This effort may include
				Department participation in pre-application meetings, and provision of
				technical information and assistance to project applicants as well as the
				affected local governments. Technical assistance and information provided by
				the Department shall be for the purpose of implementing Department programs and
				activities affecting land use and wildlife habitat protection programs under
				its jurisdiction during Periodic Review, plan updates, plan amendments or
				implementation actions of acknowledged comprehensive plans pursuant to OAR
				635-405-0040 and the
				Department's State Agency Coordination Program. This Section is not intended to
				preclude or prevent local governments from seeking fish and wildlife-related
				technical assistance from other state and federal agencies or the private
				sector.
Stat. Auth.: ORS Ch. 197 & 496
Stats. Implemented: ORS Ch. 197 &
				  496
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0000 - Authority of the Department of Fish and Wildlife

Current through Register Vol. 63, No. 7, July 1, 2024
ORS 468B.060 provides the Oregon
				Department of Fish and Wildlife with authority to seek damages in a court of
				competent jurisdiction for the value of fish and wildlife injured or killed as
				the result of pollution or violation of the condition of any permit, and for
				all costs of restoring fish and wildlife production in affected areas. In
				addition, the Comprehensive Environmental Response, Compensation and Liability
				Act of 1980 (CERCLA) provides for recovery of damages to natural resources by
				the federal government and/or state governments. OAR
				635-410-0000 through
				635-410-0035 describe how the
				Department shall investigate, document and assess the value of natural resource
				losses pursuant to its authority under state and federal law. Nothing in these
				rules, however, shall preclude assessment of losses according to formulas set
				forth in CERCLA regulations.
Stat. Auth.: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Stats. Implemented: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0005 - Policy

Current through Register Vol. 63, No. 7, July 1, 2024
The Department shall:
(1) Promptly investigate natural resource
			 losses to determine the cause and extent of damage to fish and wildlife and
			 their habitat.
(2) Seek
			 compensation from any persons responsible for the injury or destruction of
			 fish, wildlife and habitat, and the costs of restoration of affected fish and
			 wildlife production, including habitat restoration.
(3) Work cooperatively with other state and
			 federal agencies to:
(a) Eliminate sources of
			 pollution or other environmental damage;
(b) Prevent natural resource losses through
			 educational efforts and through enforcement of antipollution and other
			 environmental laws; and
(c) Ensure
			 that violations of antipollution and other environmental laws are pursued to
			 the fullest extent of the law.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0010 - Definitions

Current through Register Vol. 63, No. 7, July 1, 2024
For the purposes of OAR
				635-410-0000 through
				635-410-0035:
(1) "Affected area" means the area or areas
			 in which natural resources have been directly or indirectly affected.
(2) "Damages" means the amount of money
			 sought by the Department in a court of competent jurisdiction for the value of
			 fish and wildlife injured or destroyed, and for the cost of restoring fish and
			 wildlife production, including habitat restoration.
(3) "Department" means the Oregon Department
			 of Fish and Wildlife.
(4) "Fish and
			 wildlife" means all fish, shellfish, intertidal animals, wild birds,
			 amphibians, reptiles and wild mammals.
(5) "Fish kill" means injury or destruction
			 of fish or their productivity, regardless of cause.
(6) "Natural resources" means land, fish,
			 wildlife, biota, air or water.
(7)
			 "Natural resource losses" means any injury or destruction of fish, wildlife or
			 their habitat, when caused by pollution or violation of the condition of any
			 permit.
(8) "Net economic value"
			 means the sum of all net values for products and services associated with
			 recreational and commercial uses of the affected natural resources, such as
			 consumer surpluses and producer surpluses, plus the sum of all nonuse (or
			 preservation) values, such as option and existence values.
(9) "Pollution" means any such alteration of
			 the physical, chemical or biological properties of any waters of the state,
			 including change in temperature, taste, color, turbidity, silt or odor of the
			 waters, or such discharge of any liquid, gaseous, solid, radioactive or other
			 substance into any waters of the state which will or tends to, either by itself
			 or in connection with any other substance, create a public nuisance, or which
			 will or tends to render such waters harmful, detrimental or injurious to public
			 health, safety or welfare, or to domestic, commercial, industrial,
			 agricultural, recreational or other legitimate beneficial uses, or to
			 livestock, wildlife, fish or other aquatic life or the habitat
			 thereof.
Stat. Auth.: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Stats. Implemented: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0015 - Investigation Procedures

Current through Register Vol. 63, No. 7, July 1, 2024
In investigating any natural resource loss, the Department
				shall use generally recognized and accepted scientific field, laboratory and
				analytical procedures to guide the field investigation of the natural resource
				loss, and specifically to:
(1) Analyze
			 and determine the cause(s) of losses;
(2) Promptly respond to and mitigate
			 losses;
(3) Determine habitat or
			 fish and wildlife management measures that may be required to restore fish and
			 wildlife production in affected areas;
(4) Determine violations of statute, rule or
			 permits; and
(5) Inform Department
			 staff, other agencies, the general public and news media on the extent, nature,
			 and causes of natural resource losses.
Stat. Auth.: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Stats. Implemented: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0020 - Safety Policy

Current through Register Vol. 63, No. 7, July 1, 2024
It is the policy of the Department that no person shall enter
				potentially contaminated areas without the use of protective clothing and
				equipment as required by Oregon law. All personnel shall observe recommended
				precautions when working in chemically contaminated areas, and shall comply
				with applicable rules and statutes of the Oregon Occupational Health and Safety
				Administration.
Stat. Auth.: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Stats. Implemented: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0025 - Unauthorized Collection of Samples

Current through Register Vol. 63, No. 7, July 1, 2024
No person shall collect injured or dead fish or wildlife
				without the express written consent of the Department. Any unauthorized
				collection may be considered tampering with evidence in violation of ORS
				162.295, and illegal possession
				of wildlife, pursuant to ORS
				498.002.
Stat. Auth.: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Stats. Implemented: ORS
				  468B.060, ORS
				  496.138, ORS
				  496.146, ORS
				  496.750, ORS
				  506.119 & ORS
				  506.720
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0030 - Calculation of Numbers and Monetary Value of Fish and Wildlife, and Cost of Restoring Productivity Pursuant to ORS 468B.060

Current through Register Vol. 63, No. 7, July 1, 2024
In calculating the number and monetary value of fish and
				wildlife injured or killed, as well as the cost of restoring productivity
				pursuant to ORS 468B.060, the Department shall
				use the following formula:
(1) Fish
			 Kills: Number of Fish.
(a) If non-adult fish
			 were injured or killed, the survival rate to the adult life stage, or catchable
			 size in the case of game or food fish, for any given non-adult life stage shall
			 be multiplied by the number of that life stage killed or injured to estimate
			 adult equivalents.
(A) Survival rates
			 specific to the population affected shall be used if information is
			 available.
(B) Standard survival
			 rates shall be assumed if no survival rates specific to the affected population
			 are available.
(C) Standard
			 survival rates (to catchable size) by life stage to be used for Pacific salmon,
			 steelhead and resident trout species are provided as follows:
(i) Chinook -- Redd Size Eggs 4,500; Eggs
			 0.01; 0 Fry <60 mm 0.02; 0+ Fry >60 mm 0.05; 1+ 0.20; 2+ 1.00;
(ii) Steelhead -- Redd Size Eggs 3,300; Eggs
			 0.01; 0 Fry <60 mm 0.02; 0+ Fry >60 mm 0.06; 1+ 0.25; 2+ 1.00;
(iii) Coho -- Redd Size Eggs 2,800; Eggs
			 0.01; 0 Fry <60 mm 0.02; 0+ Fry >60 mm 0.06; 1+ 0.25; 2+ 1.00;
(iv) Searun Cutthroat -- Redd Size Eggs
			 1,750; Eggs 0.01; 0 Fry <60 mm 0.02; 0+ Fry >60 mm 0.08; 1+ 0.30; 2+
			 1.00;
(v) Resident Trout 10-15
			 inches -- Redd Size Eggs 1,400; Eggs 0.02; 0 Fry <60 mm 0.03; 0+ Fry >60
			 mm 0.09; 1+ 0.35; 2+ 1.00;
(vi)
			 Resident Trout 5-10 inches -- Redd Size Eggs 250; Eggs 0.03; 0 Fry <60 mm
			 0.06; 0+ Fry >60 mm 0.20; 1+ 0.70; 2+ 1.00.
(D) Standard survival rates (to catchable
			 size) by life stage to be used for common warmwater game fish species are
			 provided as follows:
(i) Bass -- Eggs (nest
			 size assumed to be 5,000 eggs) 0.005; 0 Fry (Hatched) 0.020; 0+ Fry (Autumn)
			 0.15; 1+ 0.50; 2+ 1.00; 3+ 1.00;
(ii) Other -- Eggs (nest size assumed to be
			 5,000 eggs) 0.002; 0 Fry (Hatched) 0.008; 0+ Fry (Autumn) 0.08; 1+ 0.25; 2+
			 0.50; 3+ 1.00.
(E) If the
			 number of fish injured or killed in a juvenile life stage cannot be estimated
			 effectively because of difficulty in observing or collecting dead and injured
			 fish, the adult equivalent of that life stage shall be estimated as the greater
			 of the number of harvestable (legal-sized) fish killed or injured, or the adult
			 equivalent population of that life stage estimated for a comparable freshwater
			 area.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 410 - NATURAL RESOURCE LOSSES › Section 635-410-0035 - Damage Assessment Procedure

Current through Register Vol. 63, No. 7, July 1, 2024
(1)
			 The Department may seek recovery in damages for natural resource losses
			 pursuant to CERCLA, either in lieu of or in addition to any recovery authorized
			 by ORS 468B.060.
(2) Pursuant to ORS
			 468B.060, the Department shall
			 pursue recovery in the form of damages or, where desirable, in-kind
			 compensation. The Department shall claim the full value of fish or wildlife
			 injured or destroyed and, where applicable, the cost of restoring production in
			 affected areas, including but not limited to habitat restoration.
(3) Before initiating suit for damages in any
			 court of competent jurisdiction, the Department shall serve a letter by
			 registered or certified mail upon the responsible party demanding compensation
			 for the value of the fish or wildlife injured or destroyed and the cost of
			 restoring production in affected areas, including but not limited to habitat
			 restoration.
(4) If after 60 days
			 from the date of mailing the responsible party fails or refuses to pay, the
			 Department may seek recovery in a court of competent jurisdiction.
(5) Any sums collected shall first be made
			 available for habitat or population restoration work in the affected
			 region.
(6) In-kind compensation,
			 in the form of habitat restoration or other actions beneficial to restoration
			 of fish or wildlife production, may be acceptable to the Department, provided
			 that, at a minimum:
(a) The services are
			 commensurate in value with the monetary value of the compensation
			 claim;
(b) The form of in-kind
			 compensation is acceptable to both the Department's Habitat Conservation
			 Division and the appropriate Regional Office.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0001 - Purpose of the Fish Passage Policy

Current through Register Vol. 63, No. 7, July 1, 2024
(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
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0010 - Fish Passage Task Force

Current through Register Vol. 63, No. 7, July 1, 2024
(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.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0015 - Prioritization

Current through Register Vol. 63, No. 7, July 1, 2024
(1) The Department
			 shall establish a list of priority artificial obstructions at which fish
			 passage would provide the greatest benefit to native migratory fish for
			 restoration and enforcement purposes.
(2) The priority list may exclude artificial
			 obstructions where a legal agreement with the Department or Commission
			 specifically indicates fish passage is not required.
(3) The Department will prioritize working
			 collaboratively with the owners or operators of artificial obstructions on the
			 priority list to establish fish passage.
(4) The priority list shall be based on the
			 current and future needs of native migratory fish.
(5) When determining placement of an
			 artificial obstruction on the priority list, the Department may use existing
			 Department information or professional judgment.
(6) When determining placement of an
			 artificial obstruction on the priority list, the Department shall consider the
			 following factors relative to each artificial obstruction for all native
			 migratory fish currently or historically in waters of this state where the
			 artificial obstruction is located. These factors include but may not be limited
			 to:
(a) The current and future quantity of
			 native migratory fish habitat which is inaccessible;
(b) The current and future quality of native
			 migratory fish habitat which is inaccessible;
(c) The reasonably foreseeable future
			 quantity and quality of native migratory fish habitat given known trends in
			 climate change (e.g., changes in timing and quantity of streamflow and stream
			 temperatures);
(d) Unique or
			 limited native migratory fish habitat which is inaccessible, or should remain
			 inaccessible for fish management purposes;
(e) The biological status of the native
			 migratory fish;
(f) The level of
			 fish passage currently provided at the artificial obstruction;
(g) The presence of other artificial
			 obstructions upstream or downstream and the timeframe native migratory fish
			 will be able to use restored passage; and
(h) Existing agreements with the Department
			 regarding fish passage.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0020 - Fish Passage Approval

Current through Register Vol. 63, No. 7, July 1, 2024
(1) No
			 artificial obstruction may be constructed or maintained across any waters of
			 this state that are inhabited, or were historically inhabited, by native
			 migratory fish without providing passage for native migratory fish.
(2) Prior to a trigger, an owner or operator
			 of an artificial obstruction shall obtain a determination from the Department
			 as to whether native migratory fish are or were historically present in the
			 waters of this state where the artificial obstruction is located, unless the
			 owner or operator assumes the presence of native migratory fish.
(3) If the Department determines, or the
			 owner or operator assumes, that native migratory fish are or were historically
			 present in the waters of this state where the artificial obstruction is
			 located, prior to a trigger the owner or operator of the artificial obstruction
			 shall either:
(a) Obtain Department approval
			 of a fish passage plan that meets the requirements of OAR
			 635-412-0035 for the specific
			 artificial obstruction;
(b) Obtain
			 Department programmatic approval of a fish passage plan for multiple artificial
			 obstructions of the same type. The Department may also grant programmatic
			 approval to an agent for multiple owners or operators of artificial
			 obstructions of the same type. Programmatic approvals are only valid so long as
			 the owner or operator complies with the conditions of the programmatic
			 approval. The Department shall only provide programmatic approval if:
(A) Fish passage structures placed subject to
			 the programmatic approval meet and adhere to criteria determined by the
			 Department;
(B) The owner,
			 operator, or agent demonstrates, as determined by the Department, prior
			 experience providing or approving acceptable fish passage structures;
(C) The owner, operator, or agent reports
			 installation information annually to the Department, including but not limited
			 to the location and installation date of all fish passage structures placed
			 under the programmatic approval;
(D) The owner or operator allows, or the
			 agent requires owners or operators to allow, the Department to inspect fish
			 passage structures subject to the programmatic approval at reasonable times;
			 and
(E) The owner, operator, or
			 agent agrees to expeditiously remedy all fish passage structures subject to the
			 programmatic approval which the Department finds do not meet the applicable
			 criteria or conditions of that programmatic approval.
(c) Pursuant to ORS
			 527.710(6),
			 install and maintain road-stream crossing structures on non-federal forestlands
			 in compliance with State Board of Forestry, through the Oregon Department of
			 Forestry, rules and guidelines that the Department concurs meet the purposes of
			 the Department's fish passage program; or
(d) Obtain an exemption from fish passage
			 requirements for the artificial obstruction as provided in OAR
			 635-412-0025.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0025 - Fish Passage Waivers and Exemptions

Current through Register Vol. 63, No. 7, July 1, 2024
(1) The Commission (or Department as
			 applicable) may grant exemptions from fish passage requirements at an
			 artificial obstruction if it is determined that:
(a) A lack of fish passage has been
			 effectively mitigated;
(b) The
			 owner or operator has received a legal waiver for the artificial obstruction
			 from the Commission or the Department; or
(c) There is no appreciable benefit to
			 providing fish passage.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0030 - Fish Passage Protests

Current through Register Vol. 63, No. 7, July 1, 2024
(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
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0035 - Fish Passage Criteria

Current through Register Vol. 63, No. 7, July 1, 2024
(1)
			 General requirements for fish passage are:
(a)
			 Unless the owner or operator of an artificial obstruction chooses to provide
			 year-round fish passage for all native migratory fish and life history stages,
			 the Department shall determine:
(A) The native
			 migratory fish that are currently or were historically present at the site that
			 must be provided fish passage;
(B)
			 The life history stages the required fish passage must accommodate;
			 and
(C) The periods of the year and
			 any conditions relevant to when fish passage shall be provided for such life
			 history stages and native migratory fish.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0040 - Mitigation Criteria

Current through Register Vol. 63, No. 7, July 1, 2024
(1) Mitigation
			 shall not be allowed for artificial obstructions located in, or which would
			 prevent access to, "Habitat Category 1" habitat for native migratory fish as
			 described in OAR 635-415-0025(1).
(2) Mitigation options include:
(a) Providing fish passage at another
			 pre-existing artificial obstruction which is not required to address fish
			 passage under OAR 635-412-0015 or
			 635-412-0020;
(b) Restoration or enhancement of native
			 migratory fish habitat;
(c)
			 Implementing measures that directly increase naturally-produced native
			 migratory fish populations, especially sensitive or state or federally listed
			 species through implementation of fish management measures; and
(d) Implementation of other actions
			 specifically approved by the Commission or Department.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0045 - Environmental Restoration Weirs

Current through Register Vol. 63, No. 7, July 1, 2024
Definitions; In addition to the definitions in OAR
				635-412-0005, for the purpose
				environmental restoration weirs the following definitions shall apply:
(1) "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.
(2) "Applicant" means a
			 person applying for the Department's approval of the construction of an
			 environmental restoration weir as defined in this section.
(3) "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 Oregon 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. Ordinary periods of high streamflow are
			 times when the water elevations would reach the ordinary high water line in an
			 unaltered stream condition; and
(d)
			 From wood (including untreated fence posts), earth, dirt, rock or other natural
			 materials. Treated wood, metal, concrete, gabions or other engineered material
			 do not qualify as natural materials.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0050 - Eligibility Criteria

Current through Register Vol. 63, No. 7, July 1, 2024
(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
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0055 - Application Material

Current through Register Vol. 63, No. 7, July 1, 2024
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;
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0060 - Conditions of Approval

Current through Register Vol. 63, No. 7, July 1, 2024
(1) The
			 Department may require third-party monitoring as a condition of
			 approval.
(2) Brush and trees
			 removed in association with construction of an environmental restoration weir
			 must be replanted with native riparian vegetation. Removal of vegetation shall
			 not be more than required to access the project site.
(3) Planting or removal of brush and trees
			 from stream banks and riparian areas as part of an authorized project are not
			 subject to riparian management requirements established under the Oregon Forest
			 Practices Act. The State Forester must be notified if there is any sale,
			 barter, or trade of timber material resulting from the removal of trees
			 associated with the project.
(4)
			 Construction of environmental restoration weirs must be done either when the
			 stream is dry, during the appropriate Department in-water work window, or by
			 arrangement with the Department.
(5) For streams with flowing water at the
			 time of construction, best efforts shall be used to prevent erosion and
			 minimize soil movement and turbidity including:
(a) Stabilizing exposed soils during and
			 after construction to prevent erosion and turbidity. To prevent erosion the
			 Department recommends protecting soil stockpiled during rain events or when the
			 stockpile site is not moved or reshaped for more than 48 hours by use of:
(A) Compost berms;
(B) Impervious materials; or
(C) Other equally effective
			 methods.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 412 - FISH PASSAGE › Section 635-412-0065 - Monitoring and Reporting

Current through Register Vol. 63, No. 7, July 1, 2024
(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.
Oregon Administrative Rules › Chapter 635 - DEPARTMENT OF FISH AND WILDLIFE › Division 415 - FISH AND WILDLIFE HABITAT MITIGATION POLICY › Section 635-415-0000 - Purpose

Current through Register Vol. 63, No. 7, July 1, 2024
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.
Stat. Auth.: ORS
				  496.012, ORS
				  496.138, ORS
				  496.171, ORS
				  506.109 & ORS
				  506.119
Stats. Implemented: ORS
				  496.012, ORS
				  496.138, ORS
				  496.171, ORS
				  506.109 & ORS
				  506.119