The Oregon Department of Fish and Wildlife (ODFW) seeks public comment on a request to exempt from fish passage requirements a proposed alternate reservoir (earthen dam) project owned and managed by Mr. Jared Cate. The proposed project is situated on an unnamed headwater tributary to Mill Creek, a direct tributary to South Santiam River in Linn County. Comments are due by August 12, 2022.
The project proposes to construct a small earthen dam and an associated culvert with flashboards risers in the seasonal stream that is presently impounded by an earthen dam. This action requires a water right administered by Oregon Water Resources Department through the Alternate Reservoir process.
The action has triggered the state's fish passage requirements. According to Greg Apke, ODFW Fish Passage Program coordinator, ODFW may grant fish passage exemptions if there are no benefits to native migratory fish from providing passage. Because of the site conditions, downstream passage barriers and no native migratory fish in the project area, ODFW has made an initial determination that if fish passage was provided the action would result in no net benefit to native migratory fish. If in the future, conditions change from which a decision is made, fish passage exemptions can be revoked and fish passage shall be addressed.
Below is the Fish Passage Exemption Application and the ODFW Benefit Analysis.
Members of the public will have until August 12, 2022 to submit written comments on the proposed plan and can send written comments to or request additional information from Greg Apke, ODFW Fish Passage Program leader, 4034 Fairview Industrial Dr SE, Salem, OR 97303, e-mail, email@example.com , or by calling (503) 947-6228. ODFW anticipates this exemption request will be discussed at the October 7, 2022 Fish Passage Task Force 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 Coordinator, 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
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 Rule Revision Initiative
ODFW has initiated a fish passage administrative rule revision process. Aligning the state's passage rules with the ODFW Climate and Ocean Change Policy is a driving force behind this initiative.
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.
Fish Passage Waivers and Exemptions
If passage will not be provided at the artificial obstruction then a waiver or exemption must be obtained prior to the trigger event. Waivers should be sought if providing passage at the artificial obstruction would provide a benefit to native migratory fish. Fish passage waivers allow an artificial obstruction to not provide fish passage if an "alternative to fish passage" is provided. Herein the "alternative to fish passage" will be referred to as "mitigation". Mitigation must provide a net benefit to native migratory fish greater than providing passage at the artificial obstruction in question. The mechanism for granting waivers and assuring the benefit provided by mitigation is an official Agreement which both the owner/operator and ODFW must sign if the waiver is approved. If all provisions of the Agreement are met, waivers are valid until the next trigger event at the artificial obstruction, which may be indefinitely.
Fish passage exemptions are different than a waiver and can be granted when there is no appreciable benefit to native migratory fish by providing passage. Exemptions are reviewed every seven years and may be revoked if conditions at the site change. If an exemption is revoked then passage must be provided immediately, independent of a trigger event.
An application for a waiver or an exemption must be submitted to ODFW. Once an application is submitted to ODFW, an approval decision will typically take from 6-9 months, though this may vary depending on the complexity of the situation and ODFW workload. The waiver or exemption process entails the following steps (with typical ODFW time-frame in parenthesis):
The owner/operator of the artificial obstruction submits a signed and completed application to the ODFW Fish Passage Coordinator at 4034 Fairview Industrial Dr. SE, Salem, OR 97302.
- ODFW completes a written Benefit Analysis (3 weeks).
- ODFW develops a Public Notice soliciting comments regarding the waiver or exemption request (1 week).
- The Public Notice is posted for a 3-week public comment period (3-weeks).
- ODFW develops a Draft Agreement (1 week) which is then forwarded to the owner/operator for review, comment.
- All waivers and exemptions are presented to the Fish Passage Task Force for review and recommendation to ODFW. The Fish Passage Task Force meets quarterly, the meeting schedule can be found at Fish Passage Task Force.
- If the stream area impacted by the waiver or exemption is less than one mile, the ODFW Fish Passage Program will issues an approval or denial to the applicate after the Fish Passage Task Force makes a recommendation (1 week).
- If the stream area impacted by the waiver or exemption is one mile or greater, the application will proceed to the ODFW Commission for a decision (at least 3 week). The ODFW Commission schedule is found at Commission Meeting Schedule.
Once a waiver or exemption is approved or denied, ODFW will send a letter to the owner/operator with the decision or an Agreement to be signed by both parties (1 week).
Click the image on the left for an interactive map of current fish passage exemptions. Exemptions are reviewed by ODFW every seven years.
This map is populated from a historic database, and ODFW cannot guarantee the accuracy of the information contained within these records.
ODFW staff correct errors and add information as time allows. Each user of this map is responsible for determining its suitability for their purpose.
Data was last updated in May 2022