If passage is not provided at the artificial obstruction, then an exemption must be obtained from ODFW prior to the trigger event. Exemption means not providing fish passage at an artificial obstruction when either:
- mitigation in lieu of providing fish passage through a waiver is authorized,
- an artificial obstruction has been granted a legal waiver, or
- a finding that there is no appreciable benefit to providing fish passage at the artificial obstruction is made.
Fish passage exemptions can be granted when there would be no appreciable benefit to native migratory fish by providing passage at the trigger site. Exemptions granted because of no appreciable benefit 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.
Waivers may be sought if providing passage at the artificial obstruction would provide a benefit to native migratory fish. A waiver is a fish passage exemption specifically allowed under OAR 635-412-0025 (1)(a) or (b) if the Commission or Department, as applicable, determines that alternatives to providing fish passage at an artificial obstruction, as proposed by the owner or operator of the artificial obstruction, provides a net benefit to native migratory fish.
"Alternatives to providing fish passage" is referred to as "mitigation." Mitigation must provide a net benefit to native migratory fish greater than providing passage at the artificial obstruction that triggers fish passage requirements and follow the requirements of OAR 635-412-0040.
A net benefit to native migratory fish is an increase in the overall, in-proximity habitat quality or quantity that is biologically likely to lead to an increased number of native migratory fish after a development action and any subsequent mitigation measures have been completed. Net benefit to native migratory fish is determined by comparing the benefit to native migratory fish that would occur if the artificial obstruction had fish passage to the benefit to native migratory fish that would occur as a direct result of the proposed mitigation actions. To qualify for a waiver the proposed mitigation must result in a benefit to native migratory fish greater than the benefit to such species that would be provided by fish passage at the artificial obstruction. The net benefit determination shall be based upon conditions that exist at the time of comparison and should consider future conditions (e.g., climate change).
The mechanism for granting waivers and assuring the benefit provided by mitigation is an official Waiver Agreement which both the owner or operator and ODFW must sign if the waiver is approved. If all provisions of the Agreement are met, and the owner or operator continues to provide the agreed-upon mitigation, waivers are valid until the next fish passage trigger or until the Commission or Department determines that circumstances have changed such that the waiver requirements no longer apply.
An application for an exemption or waiver must be submitted to ODFW. The owner or 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.
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 project. The waiver or exemption process entails the following steps (with typical ODFW timeframe in parenthesis):
- 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 or operator for review, and 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.
- For all fish passage exemptions, and any fish passage waiver effecting a stream distance less than one mile, the ODFW Fish Passage Program will issue an approval or denial to the applicant after the Fish Passage Task Force makes a recommendation (1 week).
- If the stream distance impacted by a fish passage waiver is one mile or greater, the application will proceed to the ODFW Commission for a decision (at least 2 -3 months). 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 or operator. For waivers this will include the Agreement to be signed by both parties (1 week).
- The decision will be posted online and added to ODFW's database.
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 December 2022