Current through Register Vol. 64, No. 3, March 1, 2025
(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)
