Section 57.22. Fish passages facilities

(a) General. Persons, corporations or other legal entities who erect or maintain dams on the waters of this Commonwealth are required, upon order of the Commission, to provide the fish passage facilities as the Commission may deem necessary to enable fish to ascend and descend the waters at all seasons of the year.

(b) Migratory waters. The Commission finds that it is in the public interest for fish passage facilities to be included in all dams on waters that historically provided habitat for migratory fish, and it is the policy of the Commission to promote early installation of fish passage facilities at the dams.

(1) The Commission will endeavor to identify existing dams where upstream and downstream fish passage facilities for migrating fish are required and will provide appropriate notice to the owners. The Commission may defer the requirement for actual construction until developments downstream from the dam site indicate construction of fish passage facilities for migratory fish is advisable.

(2) The Commission will additionally review existing and proposed dams as candidates for installation of fish passage facilities when hydroelectric facilities are proposed. If the Commission agrees to defer immediate construction of fish passage facilities pending the implementation of a plan for availability of fish passage facilities at downstream obstructions to fish migration, the developer shall insure that hydropower development at the site will not impede the installation of fish passage facilities when required. Hydropower development at dams in this Commonwealth shall be compatible with ultimate installation and operation of fish passage facilities.

(3) When the Commission determines that installation of fish passage facilities at a dam site is required to promote restoration of migratory fish to their historic range but further determines that immediate installation is not practicable or desirable, the Commission may seek to enter into an agreement with the owner, lessee or operator of the dam or associated hydroelectric development for the payment of so-called ‘‘in lieu of payments’’ under 30 Pa.C.S. § 3501(b) (relating to devices in dams to permit fish migration).

(c) Other waters. On waters where restoration of migratory fish to their historic habitat is not a consideration, the Commission will require installation of fish passage facilities on existing or planned dams upon a written order and finding that the installation will have an appreciable beneficial impact on the indigenous fishery. The Commission may defer installation of fish passage facilities at dams where the Commission orders installation of facilities after finding of an appreciable beneficial impact to existing or potential indigenous fishery. In these cases the Commission may seek to enter into an agreement for the payment of ‘‘in lieu of payments’’ under 30 Pa.C.S. § 3501(b). However, in all cases, the developer of hydropower installations at these dams shall insure that the development will not impede the installation of fish passage facilities as may ultimately be required.