Oregon Revised Statutes Chapter 496 § 496.266 — Environmental restoration weirs; rules

Environmental restoration weirs; rules. (1) As used in this section and ORS 496.264: (a) “Ancient floodplain” means channel adjacent areas and surfaces constructed by fluvial processes that functioned as floodplains or areas for overbank deposition prior to channel incision. (b) “Environmental restoration weir” means one or more structures that are constructed: (A) For the purpose of delaying or slowing, but not preventing, streamflow to promote restoration of stream and habitat conditions; (B) Such that the structures do not store or appropriate water in a manner that would require a permit from the Water Resources Department; (C) To be no larger than necessary to cause overbank flooding onto the lands constituting the ancient floodplain during ordinary periods of high streamflow; and (D) From wood, earth, dirt, rock or other natural materials. (c) “Healthy native migratory fish population” means a population of native migratory fish that, as determined by the State Department of Fish and Wildlife: (A) Demonstrates appropriate life stages throughout the year; and (B) Reproduces at sufficient levels to be a self-sustaining population into the foreseeable future. (d) “Incised or eroded stream” means a stream that has been scoured by erosion to the extent that the channel bed elevation has lowered relative to its ancient floodplain and the stream has lost connectivity with the ancient floodplain, as characterized by: (A) The loss of natural wetland, riparian or meadow conditions in the adjacent surfaces; (B) The absence of overbank flooding or deposition during ordinary periods of high streamflow; (C) The loss of diversity of fish or other species; or (D) The presence of invasive dry land species that have encroached from adjacent uplands, including but not limited to sagebrush, bunch grass, juniper and pine. (e) “Native migratory fish” has the meaning given that term in ORS 509.580. (f) “Qualifying stream” means an incised or eroded stream, a designated reach of an incised or eroded stream or a designated set of adjacent reaches of an incised or eroded stream that, prior to commencement of a project authorized pursuant to subsection (2) of this section: (A) Has an estimated median monthly natural streamflow of less than one cubic foot per second during at least two months of the year; (B) Has not had a healthy native migratory fish population for at least three years prior to the time of authorization; and (C) Is incised or eroded to the extent that the channel bed elevation has lowered by two feet or more relative to the elevation of the ancient floodplain. (g) “Reach” means a section of a stream that is similar in flow topography and habitat characteristics and is between 50 and 500 feet in length. (h) “Summit of the Cascade Mountains” has the meaning given that term in ORS 321.805. (2) The State Department of Fish and Wildlife shall adopt by rule and administer a program for authorizing voluntary projects for stream restoration and habitat improvement through the construction of environmental restoration weirs. The department may only authorize a project under the program if: (a) The project involves construction of environmental restoration weirs on one or more qualifying streams located in any closed basin: (A) From which water does not flow to the Pacific Ocean; and (B) That is located east of the summit of the Cascade Mountains; (b) Construction of the environmental restoration weirs will be completed no later than July 1, 2031; and (c) The project complies with local floodplain regulations if the project is located within an area subject to floodplain management. (3) Rules adopted under subsection (2) of this section shall identify criteria for evaluating voluntary projects undertaken pursuant to the program. (4) If the department determines that native migratory fish are present in a qualifying stream prior to the date of construction of environmental restoration weirs, the person engaging in the proposed voluntary project shall provide fish passage pursuant to ORS 509.585. (5)(a) If the department determines that native migratory fish are not present in a qualifying stream prior to the date of construction of environmental restoration weirs, the person engaging in the proposed voluntary project is exempt from meeting the requirements of ORS 509.585. (b) If, after construction of environmental restoration weirs, the department determines that native migratory fish have returned to the qualifying stream, the department may require the person engaging in the authorized voluntary restoration project to: (A) Provide fish passage that: (i) Is economically practicable to the person engaging in the voluntary restoration project; and (ii) Can be constructed from locally available natural materials; or (B) Provide mitigation that, as determined by the department, provides a net benefit to native migratory fish. (6) For a period of up to