71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 3002
Sponsored by COMMITTEE ON STREAM RESTORATION AND SPECIES RECOVERY
CHAPTER ................
AN ACT
Relating to the Oregon Plan; creating new provisions; amending
ORS 196.810, 315.138, 498.336, 498.346, 509.600, 509.610,
509.620, 509.625, 509.630, 509.645, 509.910 and 536.580 and
sections 2 and 3, chapter 882, Oregon Laws 1999; repealing ORS
498.351, 509.605 and 509.640; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 3 of this 2001 Act and
ORS 509.600 to 509.645 and 509.910:
(1) 'Artificial obstruction' means any dam, diversion, culvert
or other human-made device placed in the waters of this state
that precludes or prevents the migration of native migratory
fish.
(2) 'Construction' means:
(a) Original construction;
(b) Major replacement;
(c) Structural modifications that increase storage or diversion
capacity; or
(d) For purposes of culverts, installation or replacement of a
roadbed or culvert.
(3) 'Emergency' means unforeseen circumstances materially
related to or affected by an artificial obstruction that, because
of adverse impacts to a population of native migratory fish,
requires immediate action. The State Fish and Wildlife Director
may further define the term 'emergency' by rule.
(4) 'Fundamental change in permit status' means a change in
regulatory approval for the operation of an artificial
obstruction where the regulatory agency has discretion to impose
additional conditions on the applicant, including but not limited
to licensing, relicensing, reauthorization or the granting of new
water rights, but not including water right transfers or routine
maintenance permits.
(5) 'In-proximity' means within the same watershed or water
basin and having the highest likelihood of benefiting the native
migratory fish populations directly affected by an artificial
obstruction.
(6) 'Native migratory fish' means those native fish that
migrate for their life cycle needs and that are listed in the
rules of the State Fish and Wildlife Director.
(7) 'Net benefit' means 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
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after a development action and any subsequent mitigation measures
have been completed.
(8) 'Oregon Plan' means the guidance statement and framework
described in ORS 541.405. + }
SECTION 2. { + (1) It is the policy of the State of Oregon to
provide for upstream and downstream passage for native migratory
fish and the Legislative Assembly finds that cooperation and
collaboration between public and private entities is necessary to
accomplish the policy goal of providing passage for native
migratory fish and to achieve the enhancement and restoration of
Oregon's native salmonid populations, as envisioned by the Oregon
Plan. Therefore, except as provided in ORS chapter 509, fish
passage is required in all waters of this state in which native
migratory fish are currently or have historically been present.
(2) Except as otherwise provided by this section or ORS
509.645, a person owning or operating an artificial obstruction
may not construct or maintain any artificial obstruction across
any waters of this state that are inhabited, or historically
inhabited, by native migratory fish without providing passage for
native migratory fish.
(3) The State Department of Fish and Wildlife shall complete
and maintain a statewide inventory of artificial obstructions in
order to prioritize enforcement actions based on the needs of
native migratory fish. This prioritization shall include, but
need not be limited to, the degree of impact of the artificial
obstruction on the native migratory fish, the biological status
of the native migratory fish stocks in question and any other
factor established by the department by rule. The department
shall establish a list of priority projects for enforcement
purposes. Priority artificial obstructions are subject to the
State Fish and Wildlife Commission's authority as provided in ORS
509.625. Unless requested by persons owning or operating an
artificial obstruction, the department shall primarily direct its
enforcement authority toward priority projects, emergencies and
projects described in subsection (4) of this section. The
priority project list shall be subject to periodic review and
amendment by the department and to formal review and amendment by
the commission no less frequently than once every five years.
(4) A person owning or operating an artificial obstruction
shall, prior to construction, fundamental change in permit status
or abandonment of the artificial obstruction in any waters of
this state, obtain a determination from the department as to
whether native migratory fish are or historically have been
present in the waters. If the department determines that native
migratory fish are or historically have been present in the
waters, the person owning or operating the artificial obstruction
shall either submit a proposal for fish passage to the department
or apply for a waiver pursuant to subsection (7) of this section.
Approval of the proposed fish passage facility or of the
alternatives to fish passage must be obtained from the department
prior to construction, permit modification or abandonment of the
artificial obstruction.
(5) Consistent with the purpose and goals of the Oregon Plan,
the department shall seek cooperative partnerships to remedy fish
passage problems and to ensure that problems are corrected as
soon as possible. The department and the person owning or
operating the artificial obstruction are encouraged to negotiate
the terms and conditions of fish passage or alternatives to fish
passage, including appropriate cost sharing. The negotiations may
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include, but are not limited to, consideration of equitable
factors.
(6) The department shall submit a proposed determination of the
required fish passage or alternatives to fish passage to the
commission for approval. The determination may be the result of
the negotiations described in subsection (5) of this section or,
if no agreement was reached in the negotiations, a determination
proposed by the department. If a protest is not filed within the
time period specified in ORS 509.645, the proposed determination
shall become a final order.
(7)(a) The commission shall waive the requirement for fish
passage if the commission determines that the alternatives to
fish passage proposed by the person owning or operating the
artificial obstruction provide a net benefit to native migratory
fish.
(b) Net benefit to native migratory fish is determined under
this subsection 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 using
the proposed alternatives to fish passage. Alternatives to fish
passage must result in a benefit to fish greater than that
provided by the artificial obstruction with fish passage. The net
benefit to fish shall be determined based upon conditions that
exist at the time of comparison.
(c) The State Fish and Wildlife Director shall develop rules
establishing general criteria for determining the adequacy of
fish passage and of alternatives to fish passage. The general
criteria shall include, but not be limited to:
(A) The geographic scope in which alternatives must be
conducted;
(B) The type and quality of habitat;
(C) The species affected;
(D) The status of the native migratory fish stocks;
(E) Standards for monitoring, evaluating and adaptive
management;
(F) The feasibility of fish passage and alternatives to fish
passage;
(G) Quantified baseline conditions;
(H) Historic conditions;
(I) Existing native migratory fish management plans;
(J) Financial or other incentives and the application of
incentives;
(K) Data collection and evaluation; and
(L) Consistency with the purpose and goals of the Oregon Plan.
(d) To the extent feasible, the department shall coordinate its
requirements for adequate fish passage or alternatives to fish
passage with any federal requirements.
(8) A person owning or operating an artificial obstruction may
at any time petition the commission to waive the requirement for
fish passage in exchange for agreed-upon alternatives to fish
passage that provide a net benefit to native migratory fish as
determined in subsection (7) of this section.
(9)(a) Artificial obstructions without fish passage are exempt
from the requirement to provide fish passage if the commission:
(A) Finds that a lack of fish passage has been effectively
mitigated;
(B) Has granted a legal waiver for the artificial obstruction;
or
(C) Finds there is no appreciable benefit to providing fish
passage.
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(b) The commission shall review, at least once every seven
years, the artificial obstructions exempted under this subsection
that do not have an exemption expiration date to determine
whether the exemption should be renewed. The commission may
revoke or amend an exemption if it finds that circumstances have
changed such that the relevant requirements for the exemption no
longer apply. The person owning or operating the artificial
obstruction may protest the decision by the commission pursuant
to ORS 509.645.
(10) If the fundamental change in permit status is an
expiration of a license of a federally licensed hydroelectric
project, the commission's determination shall be submitted to the
Federal Energy Regulatory Commission as required by ORS 543A.060
to 543A.410.
(11) To the extent that the requirements of this section are
preempted by the Federal Power Act or by the laws governing
hydroelectric projects located in waters governed jointly by
Oregon and another state, federally licensed hydroelectric
projects are exempt from the requirements of this section.
(12) A person subject to a decision of the commission under
this section shall have the right to a contested case hearing
according to the applicable provisions of ORS 183.310 to
183.550. + }
SECTION 3. { + (1) The State Fish and Wildlife Director shall
establish a Fish Passage Task Force to advise the director and
the State Department of Fish and Wildlife on matters related to
fish passage in Oregon, including but not limited to funding,
cost sharing and prioritization of efforts. The director shall
determine the members and the specific duties of the task force
by rule.
(2) The department shall provide staff necessary for the
performance of the functions of the task force.
(3) A member of the task force may not receive compensation for
services as a member of the task force. In accordance with ORS
292.495, a member of the task force may receive reimbursement for
actual and necessary travel or other expenses incurred in the
performance of official duties.
(4) The task force shall report semiannually to the joint
legislative committee created under ORS 171.551, or to the
appropriate interim legislative committee with responsibility for
salmon restoration or species recovery, to advise the committee
on matters related to fish passage. + }
SECTION 4. ORS 196.810 is amended to read:
196.810. (1)(a) Except as otherwise specifically permitted
under ORS 196.600 to 196.905, no person or governmental body
shall remove any material from the beds or banks or fill any
waters of this state without a permit issued under authority of
the Director of the Division of State Lands, or in a manner
contrary to the conditions set out in the permit, or in a manner
contrary to the conditions set out in an order approving a
wetlands conservation plan.
(b) Notwithstanding the permit requirements of this section and
notwithstanding the provisions of ORS 196.800 (5) and (12), if
any removal or fill activity is proposed in essential indigenous
anadromous salmonid habitat, except for those activities
customarily associated with agriculture, a permit is required. '
Essential indigenous anadromous salmonid habitat' as defined
under this section shall be further defined and designated by
rule by the Division of State Lands in consultation with the
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State Department of Fish and Wildlife and in consultation with
other affected parties.
(c) No person shall be required to obtain a permit under
paragraph (b) of this subsection for prospecting resulting in the
removal from or fill of less than one cubic yard of material at
any one individual site and, cumulatively, not more than five
cubic yards of material within a designated essential indigenous
anadromous salmonid habitat segment in a single year. Prospecting
shall be conducted only within the bed or wet perimeter of the
waterway and shall not occur at any site where fish eggs are
present. Removal or filling activities customarily associated
with mining shall require a permit under paragraph (b) of this
subsection.
(d) No permit shall be required under paragraph (b) of this
subsection for construction or maintenance of fish passage and
fish screening structures that are constructed, operated or
maintained under ORS 498.311, 498.316, 498.326 { - , 498.351 - }
or 509.600 to 509.645.
(e) Nothing in this section shall limit or otherwise change the
exemptions under ORS 196.905.
(f) As used in this section:
(A) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(B) 'Essential indigenous anadromous salmonid habitat ' means
the habitat that is necessary to prevent the depletion of
indigenous anadromous salmonid species during their life history
stages of spawning and rearing.
(C) 'Indigenous anadromous salmonid' means chum, sockeye,
Chinook and Coho salmon, and steelhead and cutthroat trout, that
are members of the family Salmonidae and are listed as sensitive,
threatened or endangered by a state or federal authority.
(D) 'Prospecting' means searching or exploring for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
(E) 'Wet perimeter' means the area of the stream that is under
water or is exposed as a nonvegetated dry gravel bar island
surrounded on all sides by actively moving water at the time the
activity occurs.
(2) No governmental body shall issue a lease or permit contrary
or in opposition to the conditions set out in the permit issued
under ORS 196.600 to 196.905.
(3) Subsection (1) of this section does not apply to removal of
material under a contract, permit or lease with any governmental
body entered into before September 13, 1967. However, no such
contract, permit or lease may be renewed or extended on or after
September 13, 1967, unless the person removing the material has
obtained a permit under ORS 196.600 to 196.905.
(4) Notwithstanding subsection (1) of this section, the
Division of State Lands may issue, orally or in writing, an
emergency authorization for the removal of material from the beds
or banks or filling of any waters of this state in an emergency,
for the purpose of making repairs or for the purpose of
preventing irreparable harm, injury or damage to persons or
property. The emergency authorization issued under this
subsection:
(a) Shall contain conditions of operation that the division
determines are necessary to minimize impacts to water resources
or adjoining properties.
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(b) Shall be based, whenever practicable, on the
recommendations contained in an on-site evaluation by an employee
or representative of the division.
(c) If issued orally, shall be confirmed in writing by the
division within five days.
SECTION 5. ORS 315.138 is amended to read:
315.138. (1) There shall be allowed a credit against tax due
under ORS chapter 316, or if the taxpayer is a corporation, under
ORS chapter 317, for taxpayers that install fish screening
devices, by-pass devices or fishways, when required to do so by
ORS 498.306, 498.311 (1) { - , 498.351 (1), 509.605 (1) - } or
509.615 (1) { + or section 2 of this 2001 Act + }, and the
diversion is not part of a hydroelectric project required to be
licensed under the Federal Energy Regulatory Commission. Except
as allowed in subsection (4) of this section, the credit shall be
taken in the tax year in which the final certification is issued
under subsection (10) of this section.
(2) The credit shall be equal to 50 percent of the taxpayer's
net certified costs of installing a fish screening device,
by-pass device or fishway. The total credit allowed shall not
exceed $5,000 per device installed.
(3) The credit allowed in any one year shall not exceed the tax
liability of the taxpayer.
(4) Any tax credit otherwise allowable under this section which
is not used by the taxpayer in a particular tax year may be
carried forward and offset against the taxpayer's tax liability
for the next succeeding tax year. Any credit remaining unused in
such next succeeding tax year may be carried forward and used in
the second succeeding tax year. Any credit remaining unused in
such second succeeding tax year may be carried forward and used
in the third succeeding tax year. Any credit remaining unused in
such third succeeding tax year may be carried forward and used in
the fourth succeeding tax year. Any credit remaining unused in
such fourth succeeding tax year may be carried forward and used
in the fifth succeeding tax year, but may not be used in any tax
year thereafter.
(5) The credit provided by this section shall be in addition to
and not in lieu of any depreciation or amortization deduction to
which the taxpayer otherwise may be entitled with respect to the
installation of a fish screening device, by-pass device or
fishway. The taxpayer's adjusted basis for determining gain or
loss shall not be further decreased by any tax credits allowed
under this section.
(6) In the case of a credit allowed under this section for
purposes of ORS chapter 316:
(a) A nonresident shall be allowed the credit in the same
manner and subject to the same limitations as a resident.
However, the credit shall be prorated using the proportion
provided in ORS 316.117.
(b) If a change in the taxable year of a taxpayer occurs as
described in ORS 314.085, or if the Department of Revenue
terminates the taxpayer's taxable year under ORS 314.440, the
credit allowed by this section shall be prorated or computed in a
manner consistent with ORS 314.085.
(c) If a change in the status of a taxpayer from resident to
nonresident or from nonresident to resident occurs, the credit
allowed by this section shall be determined in a manner
consistent with ORS 316.117.
(7) To qualify for the credit the taxpayer must be issued a
certificate by the State Department of Fish and Wildlife.
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(8) To obtain credit under subsection (1) of this section, any
person proposing to apply for certification of a fish screening
device, by-pass device or fishway, before installing the fish
screening device, by-pass device or fishway, shall file a request
for preliminary certification with the State Department of Fish
and Wildlife. The request shall be in a form prescribed by the
State Department of Fish and Wildlife. The following conditions
shall apply:
(a) Within 30 days of the receipt of a request for preliminary
certification, the State Department of Fish and Wildlife may
require, as a condition precedent to issuance of a preliminary
certificate of approval, the submission of plans and
specifications. After examination thereof, the State Department
of Fish and Wildlife may request corrections and revisions to the
plans and specifications. The State Department of Fish and
Wildlife may also require any pertinent information necessary to
determine whether the proposed fish screening device, by-pass
device or fishway is in accordance with State Department of Fish
and Wildlife requirements.
(b) If the State Department of Fish and Wildlife determines
that the proposed fish screening device, by-pass device or
fishway is in accordance with State Department of Fish and
Wildlife requirements, it shall issue a preliminary certificate
approving the fish screening device, by-pass device or fishway.
If the State Department of Fish and Wildlife determines that the
fish screening device, by-pass device or fishway does not comply
with State Department of Fish and Wildlife requirements, the
State Department of Fish and Wildlife shall issue an order
denying certification.
(c) If within 90 days of the receipt of plans, specifications
or any subsequently requested revisions or corrections to the
plans and specifications or any other information required
pursuant to this section, the State Department of Fish and
Wildlife fails to issue a preliminary certificate of approval and
the State Department of Fish and Wildlife fails to issue an order
denying certification, the preliminary certificate shall be
considered to have been issued. The capital investment must
comply with the plans, specifications and any corrections or
revisions thereto, if any, previously submitted.
(d) Within 30 days from the date of mailing of the order, any
person against whom an order is directed pursuant to paragraph
(b) of this subsection may demand a hearing. The demand shall be
in writing, shall state the grounds for hearing and shall be
mailed to the State Fish and Wildlife Director. The hearing shall
be conducted in accordance with the applicable provisions of ORS
183.310 to 183.550.
(9) Any fish screening device, by-pass device or fishway that
is installed pursuant to ORS 498.311 (2) { - or alterations
made pursuant to ORS 498.351 (2) to (6) shall - } { + is + }
not { - be - } eligible for the credit provided in subsection
(1) of this section.
(10) Upon completion and pursuant to application for final
certification, final certification shall be issued by the State
Department of Fish and Wildlife if the fish screening device,
by-pass device or fishway was constructed and installed in
accordance with State Department of Fish and Wildlife
requirements. Final certification shall include a statement of
the costs of installation as verified by the State Department of
Fish and Wildlife. The credit allowed under this section shall be
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claimed first for the tax year of the taxpayer in which final
certification is issued.
(11) Pursuant to the procedures for a contested case under ORS
183.310 to 183.550, the State Department of Fish and Wildlife may
order the revocation of the certificate issued under this section
of any taxpayer, if it finds that:
(a) The certificate was obtained by fraud or misrepresentation;
or
(b) The holder of the certificate fails to meet State
Department of Fish and Wildlife requirements.
(12) As soon as the order of revocation under this section has
become final the State Department of Fish and Wildlife shall
notify the Department of Revenue of such order.
(13) If the certificate of a fish screening device, by-pass
device or fishway is ordered revoked pursuant to subsection (11)
of this section, all prior tax relief provided to the holder of
the certificate by virtue of the certificate shall be forfeited
and the Department of Revenue shall proceed to collect those
taxes not paid by the certificate holder as a result of the tax
relief provided to the holder.
(14) If the certificate of a fish screening device, by-pass
device or fishway is ordered revoked pursuant to subsection (11)
of this section, the certificate holder shall be denied any
further relief provided under this section in connection with the
fish screening device, by-pass device or fishway, as the case may
be, from and after the date that the order of revocation becomes
final.
(15) In the event that the fish screening device, by-pass
device or fishway is destroyed by flood, natural disaster or act
of God before all of the credit has been used, the taxpayer may
nevertheless claim the credit as if no destruction had taken
place.
(16) Fish screening devices, by-pass devices or fishways
{ - which - } { + that + } are financed by funds obtained
from the Water Development Fund, pursuant to ORS 541.700 to
541.855, shall not be eligible for the credit under any
circumstances.
(17) The State Department of Fish and Wildlife shall adopt
rules for carrying out the provisions of this section and report
to the interim committee created under ORS 171.605 to 171.640 to
make studies of and inquiries into state revenue matters.
SECTION 6. ORS 498.336 is amended to read:
498.336. Nothing in ORS 498.306, 498.311 { - , 498.351,
509.605 - } or 509.615 { + or section 2 of this 2001 Act + }
shall be construed:
(1) To limit the eligibility of a person required to install
and operate fish screening or by-pass devices to obtain funding
from the Water Development Fund pursuant to ORS 541.700 to
541.855.
(2) To limit the acquisition or acceptance of any federal funds
available for the installation, operation, maintenance,
improvement or repair of fish screening or by-pass devices on
water diversions in this state, regardless of the size of the
diversion.
SECTION 7. ORS 498.346 is amended to read:
498.346. The State Fish and Wildlife Commission may maintain a
suit to enjoin any person, including governmental agencies of
this state and political subdivisions of this state, from
violating the provisions of ORS 498.306 { - , - } { + or + }
498.311 { - or 498.351 - } . The circuit court for any county
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in which are situated any waters in which any such violations are
threatened has jurisdiction of the suit authorized by this
section.
SECTION 8. ORS 509.600 is amended to read:
509.600. (1) { - It is unlawful - } { + A person may
not + } willfully or knowingly { - to - } destroy, injure or
take { - food - } fish within 600 feet of any fishway, except
as permitted by subsection (2) of this section { - or in the
case of angling under ORS 498.216 - } . Actions that violate this
section include, but are not limited to:
(a) Hindering, annoying or disturbing fish entering, passing
through, resting in or leaving such fishway, or obstructing the
passage of fish through the fishway at any time or in any manner.
(b) Placing anything in the fishway.
(c) Using any fishing gear within 600 feet of the fishway.
(d) Taking fish at any time anywhere within 600 feet of the
fishway.
(e) Doing any injury to the fishway.
(2) The State Fish and Wildlife Commission may { - grant
permits to take fish other than those fish classified under the
family salmonidae - } { + by rule or by issuance of permits
authorize the taking of fish + } within 600 feet of any fishway
{ - in a manner that will not otherwise violate paragraph (a) of
subsection (1) of this section - } .
SECTION 9. ORS 509.610 is amended to read:
509.610. (1) Subject to ORS 509.645, when the State { +
Department of + } Fish and Wildlife { - Director - } requires
{ - a fishway - } { + fish passage + } to be provided pursuant
to { - ORS 509.605, the owner or occupant of a dam or - }
{ + section 2 of this 2001 Act, the person owning or operating
an + } artificial obstruction shall keep the
{ - fishway in repair and open and free from obstruction to the
passage of anadromous or food fish at all times - } { + fish
passage in such repair as to provide adequate fish passage of
native migratory fish at all times + }.
(2) Each day of neglect or refusal to comply with subsection
(1) of this section, after notification in writing by the
{ - director - } { + department + }, constitutes a separate
offense.
{ + (3) A person owning or operating an artificial
obstruction is responsible for maintaining, monitoring and
evaluating the effectiveness of fish passage or alternatives to
fish passage. + }
SECTION 10. ORS 509.620 is amended to read:
509.620. { - Where - } { + If, + } in the judgment of the
State { + Department of + } Fish and Wildlife { + , fish passage
is not functioning as intended or + } { - Commission, any
fishway - } is inadequate, as constructed under
{ - ORS 509.605 or otherwise - } { + section 2 of this 2001
Act + }, the { + State Fish and Wildlife + } Commission may
condemn the { - fishway - } { + fish passage + } and order
{ - a new fishway - } { + new fish passage + } installed in
accordance with plans and specifications determined by the
{ - commission - } { + department + }.
SECTION 11. ORS 509.625 is amended to read:
509.625. (1) The State { + Department of + } Fish and Wildlife
{ - Commission - } may determine or ascertain by inspection of
any { - dam or - } artificial obstruction whether it would be
advisable to construct { + fish passage + }, or order the
construction pursuant to { - ORS 509.605 - } { + section 2 of
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this 2001 Act + } { - by the owners thereof, of fishways over
the dam or - } { + of fish passage, at the artificial + }
obstruction. { - The commission may construct or order the
construction, pursuant to ORS 509.605, of such number of fishways
in any stream inhabited by anadromous or food fish as is deemed
adequate to provide a good and sufficient passageway for such
fish. - } { + Without affecting other remedies to enforce the
requirement to install fish passage, if the State Fish and
Wildlife Commission determines that an emergency exists, the
commission may order the construction, pursuant to section 2 of
this 2001 Act, of fish passage in the waters of this state
inhabited by native migratory fish as deemed adequate to provide
passage for native migratory fish. + }
(2) Where { - a fishway - } { + fish passage + } has
{ - heretofore - } { + previously + } been constructed with or
without the approval of the commission and has proved useless or
inadequate for the purposes for which it is intended, the
commission may improve or rebuild such { - fishway - } { +
fish passage + }. However, such construction or reconstruction
shall not interfere with the prime purpose of the
{ - dam or - } { + artificial + } obstruction. This
subsection { - shall - } { + may + } not be construed to
require the improvement or rebuilding of
{ - fishways - } { + fish passage + } by the commission.
{ + (3)(a) The commission may order a person owning or
operating an artificial obstruction on the priority list created
pursuant to section 2 of this 2001 Act who has been issued a
water right, owners of lawfully installed culverts or owners of
other lawfully installed obstructions to install fish passage or
to provide alternatives to fish passage if the commission can
arrange for nonowner or nonoperator funding of at least 60
percent of the cost.
(b) Notwithstanding paragraph (a) of this subsection, the
commission may order installation of fish passage or alternatives
to fish passage without regard to funding sources:
(A) If the person owning or operating the artificial
obstruction is already subject to an obligation to install fish
passage or to provide alternatives to fish passage under section
2 of this 2001 Act;
(B) If the commission declares an emergency under this section;
or
(C) If the person owning or operating the artificial
obstruction has not been issued a water right or if the
artificial obstruction has been otherwise unlawfully installed.
(4) If a person who owns or operates an artificial obstruction
and who is required to provide fish passage under section 2 of
this 2001 Act fails to provide fish passage in the manner and
time required by the State Department of Fish and Wildlife, the
commission may remove, replace or repair the artificial
obstruction or any parts of the obstruction at the expense of the
owner or operator. + }
SECTION 12. ORS 509.630 is amended to read:
509.630. The State { + Department of + } Fish and Wildlife
{ - Commission - } may determine or ascertain by inspection of
any natural obstruction whether it would be advisable to
construct
{ - fishways - } { + fish passage + } over or around such
natural obstruction. If it is deemed advisable the { + State
Fish and Wildlife + } Commission may construct { - fishways in
any stream inhabited by anadromous or food fish adequate to
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provide a good and sufficient passageway for such fish - } { +
fish passage that provides adequate passage for native migratory
fish in the waters of this state inhabited by native migratory
fish + }.
SECTION 13. ORS 509.645 is amended to read:
509.645. { - (1) Any owner or occupant of a dam or artificial
obstruction may file a protest with the Water Resources
Commission within 10 days after receipt of notification from the
State Fish and Wildlife Director as provided in ORS 509.605 (2),
or within 10 days after receiving notice of the requirement by
the State Fish and Wildlife Commission under ORS 509.640, on the
ground that providing the dam or artificial obstruction with a
fishway or providing the dam with hatchery facilities as required
by the State Fish and Wildlife Commission, as the case may be,
would impair or be detrimental to the public interest. - }
{ - (2) Within a reasonable time after the filing of the
protest under subsection (1) of this section, the Water Resources
Commission shall hold a public hearing thereon. The Water
Resources Commission shall give written notice of the hearing to
each owner or occupant of the dam or artificial obstruction, who
is known to or can be reasonably ascertained by the Water
Resources Commission, and to the State Fish and Wildlife
Commission at least 10 days prior to the hearing. - }
{ - (3) The Water Resources Commission, after the hearing,
shall make a determination as to whether providing the dam or
artificial obstruction with a fishway or providing the dam with
hatchery facilities as required by the State Fish and Wildlife
Commission, as the case may be, would impair or be detrimental to
the public interest. The determination shall be binding upon each
owner or occupant of the dam or artificial obstruction and the
State Fish and Wildlife Commission. The determination shall
approve the requirement of the fishway or the hatchery
facilities, as the case may be, approve the requirement subject
to conditions specified in the determination or disapprove the
requirement. If each owner or occupant of the dam or artificial
obstruction complies with the determination, such owner or
occupant shall be deemed not in violation of ORS 509.605 or
509.640, as the case may be. - }
{ - (4) In determining whether providing the dam or
artificial obstruction with a fishway or providing the dam with
hatchery facilities as required by the State Fish and Wildlife
Commission, as the case may be, would impair or be detrimental to
the public interest, the Water Resources Commission shall have
due regard for: - }
{ - (a) The state water resources policy formulated under ORS
536.295 to 536.350. - }
{ - (b) The considerations set forth in ORS 536.310. - }
{ - (5) In the event protests are filed with the Water
Resources Commission under both subsection (1) of this section
and ORS 498.351, the Water Resources Commission may consider and
determine the protests in a combined proceeding under this
section and ORS 498.351. - }
{ + (1) A person owning or operating an artificial
obstruction may request alternative dispute resolution at any
point in the process of determining fish passage requirements.
(2) A person owning or operating an artificial obstruction may
file a protest with the State Fish and Wildlife Commission within
30 days from the receipt of the State Department of Fish and
Wildlife determinations under section 2 of this 2001 Act. The
Enrolled House Bill 3002 (HB 3002-C) Page 11
person shall identify the grounds for protesting the department's
determinations.
(3) The commission may, after sufficient opportunity for public
review and comment, approve, deny or modify the proposed
determinations. + }
SECTION 14. ORS 509.910 is amended to read:
509.910. (1) The State Fish and Wildlife Commission may
maintain an action for an injunction to enjoin and restrain any
person, municipal corporation, political subdivision or
governmental agency of this state from violating any of the
provisions of ORS 509.130, 509.140, 509.505, { - 509.605, - }
509.610, 509.615 and 509.625 { + and section 2 of this 2001
Act + }.
(2) Any action authorized by this section shall be tried in the
circuit court of the county in which the violation occurs { + or
in Marion or Multnomah County + }.
(3) If the defendant is a corporation with its principal office
and place of business in a county other than in which the waters
flow or are situated, such action shall be deemed an action of
local nature and service of summons made on a corporation in any
county where the corporation has its principal office and place
of business. If it is a foreign corporation, service may be made
on the statutory agent but if there is no such statutory agent
then upon the Secretary of State as in other cases provided by
law.
SECTION 15. ORS 536.580 is amended to read:
536.580. Nothing in ORS 509.645, 536.220 to 536.540 or 543.225,
as enacted by chapter 707, Oregon Laws 1955, nor in the
amendments made by chapter 707, Oregon Laws 1955, to ORS 225.290,
225.300, 261.325, 261.330, { - 509.605, - } 509.610, 509.625,
{ - 509.640, - } 537.170, 537.200 (1969 Replacement Part),
543.050 or 543.230, nor in sections 38, 41, 43, 45 or 50 of
chapter 707, Oregon Laws 1955, { + nor in section 2 of this
2001 Act + } shall be construed to take away or impair any right
to any waters or to the use of any waters vested and inchoate
prior to August 3, 1955.
SECTION 16. Section 2, chapter 882, Oregon Laws 1999, is
amended to read:
{ + Sec. 2. + } For the period beginning on { - the
effective date of this 1999 Act - } { + July 30, 1999, + } and
ending June 30, 2001, the State Fish and Wildlife Commission
shall not initiate action under ORS
{ - 498.351, 509.605, - } 509.610, 509.620 { - , - }
{ + or + } 509.625 { - or 509.640 - } { + or section 2 of
this 2001 Act + } with respect to an existing hydroelectric
project operating under a state or federal license issued before
{ - the effective date of this 1999 Act - } { + July 30,
1999 + }, except as part of the process of reauthorization under
the provisions of ORS chapter 543A.
SECTION 17. Section 3, chapter 882, Oregon Laws 1999, is
amended to read:
{ + Sec. 3. + } (1) Notwithstanding ORS { - 498.351,
509.605, - } 509.610, 509.620 { - , - } { + or + } 509.625
{ - or 509.640 - } { + or section 2 of this 2001 Act + }, for
the period beginning on { - the effective date of this 1999
Act - } { + July 30, 1999, + } and ending June 30, 2001, the
State Fish and Wildlife Commission may enter into a memorandum of
understanding that waives the requirements of { - ORS 498.351
or 509.605 - } { + section 2 of this 2001 Act + } for any new
project or modification of an existing project if:
Enrolled House Bill 3002 (HB 3002-C) Page 12
(a) The commission determines, after sufficient opportunity for
public review and comment, that alternative mitigation proposed
by the project owner or operator would provide a net benefit to
wild anadromous and other migratory native fish; and
(b) The proponent of the alternative mitigation submits a
memorandum of understanding for approval by the commission on or
before January 1, 2001.
(2) Any proposed alternative passage and mitigation for the
project in lieu of providing { - a fishway - } { + fish
passage + } under { - ORS 498.351 or 509.605 - } { + section
2 of this 2001 Act + } shall not include a hatchery component or
the introduction of exotic fish species within the project area.
SECTION 18. { + (1) There is created the Salmon Recovery Task
Force consisting of 13 members. Members shall be persons who are
well-experienced with and very knowledgeable about salmon
recovery and the Oregon Plan. Members shall be appointed jointly
by the Governor, the President of the Senate and the Speaker of
the House of Representatives and shall include:
(a) One member of the Senate;
(b) Two members of the House of Representatives;
(c) One representative of the Department of Environmental
Quality;
(d) One representative of the State Department of Agriculture;
(e) One representative of the State Forestry Department;
(f) One representative of the State Department of Fish and
Wildlife;
(g) One representative of the Oregon Watershed Enhancement
Board;
(h) One representative of the Indian tribes;
(i) One representative of the sportfishing community;
(j) One representative of the commercial fishing community;
(k) One representative of local governments; and
(L) One representative of the environmental and conservation
community.
(2) The Governor, the President of the Senate and the Speaker
of the House of Representatives shall make every effort to
encourage the involvement, in an advisory capacity to the task
force, of persons from federal agencies that are involved in
salmon recovery efforts. Members of the Legislative Assembly who
are appointed to the task force may act in an advisory capacity
only.
(3) The task force shall:
(a) Define 'recovery' for purposes of restoring anadromous
salmonid populations to a point at which the populations may be
removed from endangered or threatened status under the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 to
1544);
(b) Develop and coordinate a scientific workshop with the
Independent Multidisciplinary Science Team;
(c) Establish criteria for evaluation of salmon recovery; and
(d) Develop legislation for recommendation to the
Seventy-second Legislative Assembly.
(4) The task force is subject to the provisions of ORS 171.605
to 171.635 and has the authority contained in ORS 171.505 and
171.510.
(5) The task force shall use the services of permanent
legislative staff to the greatest extent practicable.
(6) A member of the Legislative Assembly who is appointed to
the task force shall be entitled to an allowance as authorized by
ORS 171.072 from funds appropriated to the Legislative Assembly.
Enrolled House Bill 3002 (HB 3002-C) Page 13
Other members of the task force are not entitled to compensation
but may receive actual and necessary travel or other expenses
incurred in the performance of their official duties as provided
in ORS 292.495.
(7) All agencies, departments and officers of this state are
directed to assist the task force in the performance of its
functions and to furnish such information and advice as the
members of the task force consider necessary to perform their
functions.
(8) Official action by the task force as outlined in subsection
(3) of this section shall require the approval of a majority of
the nonadvisory members of the task force. All legislation
recommended by official action of the task force must indicate
that it is introduced at the request of the task force. Such
legislation shall be prepared in time for presession filing
pursuant to ORS 171.130.
(9) The task force shall report to the joint legislative
committee established under ORS 171.551 or an interim committee
as appropriate. + }
SECTION 19. { + Section 18 of this 2001 Act is repealed on
December 31, 2002. + }
SECTION 20. { + The State Fish and Wildlife Director shall
report to the Governor, the Speaker of the House of
Representatives, the President of the Senate and the joint
interim committee established pursuant to ORS 171.551 or the
appropriate interim legislative committee with responsibility for
salmon restoration or species recovery:
(1) Prior to the adoption of rules relating to fish passage;
(2) Prior to the establishment of the general criteria for
determining the adequacy of fish passage and of alternatives to
fish passage required to be established under section 2 (7)(c) of
this 2001 Act; and
(3) Semiannually on the progress that the director has made in
implementing sections 1 to 3 of this 2001 Act. + }
SECTION 21. { + ORS 498.351, 509.605 and 509.640 are
repealed. + }
SECTION 22. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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Passed by House May 29, 2001
Repassed by House June 30, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 27, 2001
...........................................................
President of Senate
Enrolled House Bill 3002 (HB 3002-C) Page 14
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 3002 (HB 3002-C) Page 15