Current through Register Vol. 63, No. 9, September 1, 2024
(1) Per ORS
543.017, anadromous salmon and steelhead resources and habitats shall be
preserved. It is the policy of the State to protect the natural resources of
the state from possible adverse impacts of a project (ORS 543.015). In order to
approve an application, the Director or Commission may require that applicants
implement, operate and maintain measures to mitigate for possible adverse
impacts specific to a Project. The Department shall consider the need for the
following mitigation measures to protect fish habitats and/or fish resources
including but not limited to:
(a) Providing
for fish passage around diversion structures, dams or reservoirs with
appropriate bypass flows, ladders and/or other measures as may be required by
ODFW under ORS 509.580 to 509.585;
(b) Screening of intakes to prevent juvenile
entrainment through turbines as may be required by ODFW under ORS 498.301 to
498.321;
(c) Preventing false
attraction water from guiding fish into turbines at the tailrace;
(d) Controlling ramping rates to prevent
stranding of fish;
(e) Avoiding
delay of upstream or downstream migration;
(f) Managing wood and gravel through the
project to maintain or enhance habitat conditions; and/or other impacts.
(2) Evidence of a fish
screening agreement or waiver with ODFW; a fish passage waiver, exemption or
agreement with the ODFW or the Oregon Fish and Wildlife Commission; and/or an
agreement to implement final terms and conditions recommended by ODFW to the
FERC under Section 10(j) or 30(c) of the Federal Power Act shall satisfy these
standards, as applicable.
(3) All
projects which divert water away from a portion of a stream, excepting those
processed under ORS 543.765, may be conditioned to provide bypass flows for
aquatic habitat protection before water may be diverted for power production.
(4) Unavoidable adverse impacts on
fish or to fish management programs will be mitigated;
(a) Project construction, timing and
procedures are designed to minimize fishery impacts from instream construction
work and premature or unnecessary land clearing and disturbances;
(b) All fishery protective measures are
scheduled to be fully functional when the project commences operations; and
(c) The proposed project is
consistent with ODFW management programs in force on the effective date of
these rules.
(5) No
project shall be approved that would result in a net loss of wild game fish. In
order to approve an application, the Director shall apply the following
standards:
(a) A project, any part of which
is located on a river or stream reach used by wild game fish, or that would
adversely affect wild game fish, shall include acceptable mitigation measures
which:
(A) Are located in the project
vicinity;
(B) Are in effect at the
time of adverse impact or start of project operation, whichever comes first;
(C) Will prevent a net loss to
individual species of wild game fish;
(D) Will prevent conversion of a wild game
fish population and fishery to a hatchery dependent resource;
(E) Are consistent with ODFW management plans
and programs in force on the effective date of these rules; and
(F) Employ workable and generally accepted
methods and techniques of mitigation best suited to the affected fish
resource(s).
(6) No project shall be approved that may
result in mortality or injury to an individual anadromous salmon or steelhead
or loss of any salmon or steelhead habitat. In order to approve an application,
the Director shall apply the following standards:
(a) If proposed at an undeveloped site, it is
not reasonably foreseeable that the location, design, construction or operation
of the project may result in mortality or injury to an individual anadromous
salmon or steelhead or loss of any salmon or steelhead habitat; and
(b) Modification of an existing facility or
project on a stream reach used by anadromous salmon or steelhead or providing
anadromous salmon or steelhead habitat shall include acceptable measures that:
(A) Are reasonably certain to restore,
enhance or improve existing salmon and steelhead populations in the affected
river;
(B) Comply with wild game
fish standards in paragraphs (5)(a)(C) and (D) of this rule if the affected
salmon or steelhead populations contain wild fish;
(C) Are consistent with ODFW Fishery
management plans and programs in force on the effective date of these rules;
(D) Employ workable and generally
accepted methods and techniques best suited to the fish resources affected by
the proposed project; and
(E) Are
in effect at the time of adverse impact or start of project operation,
whichever comes first.
(7) In order to approve an application for a
project within the Columbia River Basin, the Director shall find that the
proposed project complies with the fish protection, mitigation and enhancement
requirements of the Northwest Power and Conservation Council (NPCC) Columbia
River Basin Fish and Wildlife Program.
Stat. Auth.: ORS 536.025, 536.027, 537 & 543
Stats. Implemented:
