Noble v. Dept. of Fish and Wildlife

OAR 635-412-0035(1) clearly requires fish passage throughout the year, whether the flow within the stream falls within the the design streamflow range.

Petitioner’s appealed the Court of Appeals decision upholding the approval of dam fishways by the Oregon Department of Fish and Wildlife (ODFW). A small stream ran through Petitioner’s property. Petitioner’s created a fish habit and wanted the fish to return to their property. The stream ran downstream through the two dams at issue. Petitioners sought to have these dams removed as being illegal. The owners obtained permits, which allowed the dams to remain so long as they contained adequate fish passages. Both owners installed fishways, which were approved by ODFW. Petitioners sought review of ODFW’s approval. The Office of Administrative Hearings upheld ODFW’s approval and the Court of Appeals affirmed. Petitioners sought review by the Supreme Court. The parties disagree as to the “year-round” requirement of the rule. ODFW argues that “year-round” is only applicable when water is flowing through the dam and fishway. Petitioners disagree the rule contains that restriction and argue the passage must be provided regardless of whether the flow is within the range of the fishway. The Supreme Court agreed with the Petitioner’s and found ODFW’s interpretation of the rule was inconsistent with the requirement that a dam fishway must be available at times required by the life cycles of the fish. Reversed and remanded.