Oregon Fish and Wildlife
Pete Baki, (503) 586-9827, Pete.Baki@odfw.oregon.gov
ODFW seeks comments on fish passage exemption in Lane County
August 28, 2023
SALEM, Ore.—ODFW is seeking public comment on a request to exempt from fish passage requirements a proposed culvert on OR58 MP 32.05 that conveys an unnamed tributary to the Middle Fork Willamette River, near Westfir in Lane County. Comments are due no later than Sept. 19, 2023.
The Oregon Department of Transportation (ODOT) proposes to extend the culvert. Given historic fish use, this action has triggered Oregon’s fish passage laws.
According to Pete Baki, ODFW-ODOT Fish Passage Liaison, ODFW may grant fish passage exemptions if there is no appreciable benefit to native migratory fish from providing passage. Because of the lack of current native migratory fish use due to land use changes, ODFW has made an initial determination that even if fish passage was provided to the approximately 50 feet of channel, the action would result in no appreciable benefit to native migratory fish. In the future, if conditions change from which the decision was made, exemptions can be revoked and fish passage shall be addressed.
Public comments on the proposed exemptions are accepted through Sept. 19.
Send written comments to, or request additional information from, Pete Baki, ODFW-ODOT Fish Passage Liaison, 4034 Fairview Industrial Dr SE, Salem, OR 97303, firstname.lastname@example.org, or by calling (503) 586-9827.
The Fish Passage Task Force will be asked to consider this exemption and provide a recommend to ODFW. There will also be an opportunity for public comment at the Fish Passage Task Force Meeting on Oct. 13, 2023. If you wish to provide a verbal comment, you must register 48 hours in advance of the meeting; a link to register will be available closer to the meeting.
It is the policy of the State of Oregon to provide for the upstream and downstream passage for native migratory fish. ODFW strives to work cooperatively and collaborate with public and private entities to accomplish the goal of providing passage for native migratory fish. Our staff are available to advise the public on fish passage issues. Please contact us to answer questions and provide technical assistance for fish passage projects.
For Fish Passage plan approvals, waivers, or exemptions, please contact:
Greg Apke, Fish Passage Program Manager, at Greg.D.Apke@odfw.oregon.gov 503-947-6228 or
Katherine Nordholm, Fish Screening and Passage Coordinator, at Katherine.E.Nordholm@odfw.oregon.gov 503-947-6274.
Fish Screening and Passage Program Contacts
2023 ODFW Program Updates and Announcements
The Oregon Fish and Wildlife Commission adopted new fish passage administrative rules on December 16, 2022. These new rules take effect January 1, 2023. These new fish passage administrative rules are intended to provide clarity to the public and owners and operators of fish passage barriers or "Artificial Obstructions". The rules also close loopholes around fish passage triggers for existing dams, incorporate multi-species needs, update fish passage design criteria and provide more fish passage design alternative solutions, improve ODFW Program efficiency, better align state and federal stream simulation culvert design standards and compel designers to consider future climate changing conditions into design alternatives and engineering analyses.
These new rules take effect January 1, 2023 and can be found on the Oregon Secretary of State's Office administrative rule website located at: https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=2988.
If you have questions about these new rules, what they mean and how they might apply to you and your project, please contact ODFW Fish Passage Program staff (see program contacts in the dialog near the top of this page).
Since August 2001, the owner or operator of an artificial obstruction located in waters in which native migratory fish are currently or were historically present must address fish passage requirements prior to certain trigger events. Laws regarding fish passage may be found in ORS 509.580 through 910 and in OAR 635, Division 412.
Trigger events include installation, major replacement, a fundamental change in permit status (e.g., new water right, renewed hydroelectric license), or abandonment of the artificial obstruction. Further details concerning triggers can be requested from the Oregon Department of Fish and Wildlife (ODFW).
Native migratory fish include native salmon, trout, lamprey, sturgeon, and suckers, as well as a few other species. It is ODFW's responsibility to determine the current or historical presence of native migratory fish; for streams lacking data this determination may be based on professional judgement. If the owner/operator knows that native migratory fish are or were present at the site, then the owner/operator does not need to contact ODFW for this determination and may proceed with meeting fish passage requirements on their own information. However, if the owner/operator does not think native migratory fish are or were present, or is unsure of presence, ODFW should be contacted to make the determination.
Addressing fish passage requirements entails the owner/operator obtaining from ODFW: 1) approval for a passage plan when passage will be provided, 2) a waiver from providing passage, or 3) an exemption from providing passage. It is the intent of state fish passage laws (ORS 509.585(1)) that, in most cases, option #1 should be sought and passage should be provided at the artificial obstruction.
Note that complying with ODFW's fish passage requirements is likely not the only regulatory approval needed to perform many actions at or in relation to an artificial obstruction. Oregon Department of State Lands, Oregon Water Resources Department, US Army Corps of Engineers, NOAA Fisheries, other ODFW sections (e.g., habitat and fish salvage), or other local, state, or federal agencies may also have permits or requirements which must be met.
Fish Passage Task Force
The Fish Passage Task Force advises the Oregon Department of Fish and Wildlife and the Fish and Wildlife Commission on matters related to fish passage. These matters include, but are not limited to, rulemaking to implement statutes, funding and special conditions for passage projects, and exemptions and waivers.
Project Highlights and Program Reports
Fish passage projects around the state continue to improve and restore passage to current and historic fish habitat. ODFW strives to work cooperatively and collaborate to find fish passage solutions, including testing pilot projects and forming programmatic agreements.
Statewide Fish Passage Priority Lists
There are currently 42,780 inventoried artificial barriers in Oregon that can potentially inhibit fish movement. Due to the volume of these barriers and the associated cost of repairing them, only a small proportion receive attention each year. ODFW has constructed a prioritization list to identify barriers that maximize the return of native migratory fish to critical habitats.
|A 2019 culvert replacement on North Creek, a tributary to Drift Creek, on the Oregon Coast. This project improved access to over thirteen miles of habitat, including cold water refugia for Chinook and coho salmon, steelhead, coastal cutthroat, lamprey, and other aquatic species. Project partners included the Midcoast Watersheds Council, ODFW, ODOT, USFS, U.S Fish and Wildlife Service, OWEB, Trout Unlimited, National Fish and Wildlife Foundation, and a crowdfunding campaign organized by the Native Fish Society.
Do you need to address fish Passage?
There are several preliminary items which must be considered before the owner/operator must address fish passage at an artificial obstruction.
Is there a trigger? It is the responsibility of the owner/operator of an artificial obstruction to know whether they will trigger the need to address fish passage. However, if there is a question whether a particular action is a trigger, then ODFW should be contacted for trigger clarification. If an action is a trigger, fish passage will only need to be addressed if native migratory fish are currently or were historically present in the stream reach of the artificial obstruction.
Native Migratory Fish Determination. A local ODFW biologist should be contacted to determine native migratory fish presence at the site. If native migratory fish are or were historically present then fish passage must be addressed. Project proponents should assume that fish passage must be addressed regardless of stream size or seasonality if no determination from ODFW regarding fish presence is requested.
If there is a trigger and native migratory fish are or were present, then fish passage must be addressed. As previously stated, this entails either providing passage or obtaining a waiver or exemption. Providing passage is preferred, and this requires ODFW approval, as described in the next section.
Passage Plan Approval
Passage plans and installed structures must comply with ODFW Fish Passage Criteria. Fish passage criteria and design are normally based on the migration timing and swimming ability of the weakest individual of the weakest species and life history stage of native migratory fish which are present that require upstream access. Thus, it is important to identify this information for the location in question. With this in mind, here are some key steps for addressing fish passage prior to a trigger event:
Fish Passage Criteria and Design Information. If native migratory fish are or were present at the site and passage must be addressed, then the local ODFW biologist should determine the specific native migratory fish species, life history stages, and migration timing (i.e., months of the year passage is required for these fish) at the site. This can be done at the same time as the Native Migratory Fish Determination discussed above. For certain passage design methods this information will determine which passage criteria must be met. If approved by ODFW's Fish Passage Coordinator, ODFW management objectives and other relevant factors may allow deviation from the timing and/or weakest species or stage design requirements. Project proponents should assume that the weakest fish contained in the criteria are present and require passage regardless of stream size or seasonality if no determination from ODFW regarding fish passage needs is requested.
Passage Plan Approval. Once a structure has been designed, a fish passage approval application and the design plans should be submitted to ODFW for evaluation. Note that complicated structures requiring engineering review, such as hydraulic-method culverts, fishways, and tidegates, will take more time for approval due to the nature of the structure and potential need to also involve ODFW statewide engineering staff. Also, based on workload, ODFW engineers may be able to provide technical assistance during the design stage; contact the ODFW Fish Passage Coordinator for more information.
Guidance and Approval for Instream Habitat Restoration Actions
ODFW has developed policy guidance to clarify when ODFW's fish passage approval is required for instream habitat restoration actions. The information below describes the ODFW fish passage review and approval procedures for different instream habitat restoration activities and defines expedited timelines associated with fish passage permit acquisition.