§12760. Fishways in dams and other artificial

obstructions

1.__Commissioner's authority. In order to conserve, develop or restore anadromous or migratory fish resources, the commissioner may require a fishway to be erected, maintained, repaired or altered by the owners, lessors or other persons in control of any dam or other artificial obstruction within inland waters frequented by alewives, shad, salmon, sturgeon or other anadromous or migratory fish species.

2.__Examination of dams. The commissioner shall periodically examine all dams and other artificial obstructions to fish passage within the inland waters in order to determine whether fishways are necessary, sufficient or suitable for the passage of anadromous or migratory fish.

3.__Monitoring program.__The commissioner shall, in cooperation with the Department of Marine Resources and the Atlantic Salmon Commission, establish a program to ensure fishways are functioning properly and remain sufficient or suitable for the passage of anadromous or migratory fish.__The commissioner has sole authority to take corrective action at fishways as prescribed under this section.

4.__Initiation of fishway proceedings. The commissioner shall initiate proceedings to consider construction, repair or alteration of fishways in existing dams or other artificial obstructions whenever the commissioner determines that one or more of the following conditions may exist:

A.__Fish passage at the dam or obstruction in issue, whether alone or in conjunction with fish passage at other upriver barriers, will improve access to sufficient and suitable habitat anywhere in the watershed to support a substantial commercial or recreational fishery for one or more species of anadromous or migratory fish; or

B.__Fish passage at the dam or obstruction in issue is necessary to protect or enhance rare, threatened or endangered fish species.

5.__Adjudicatory proceedings.__A fishway proceeding must conform to the following requirements.