:Executive summarythe Oregon Ocean Resources Management Task Force. . Oregon Ocean Resources Management Task Force. [Portland, Or.] :The Task Force,[1991] Marine resources Oregon Management. Marine resources Government policy Oregon. AA6,@ GC 1005.2 .o7 074 1991 The Oregon Ocean Plan Published and distributed in January 1991 by the State of Oregon: Neil Goldschmidt, Governor 1987 - 1991 Barbara Roberts, Governor 1991 - Oregon's Ocean Resources Management Task Force Gafl Achterman, Task Force Chair, Governor's Assistant for Natural Resources Ralph Brown, Commercial Fisheries Bob Pullen, Charter Fisheries Paul Vogel, Director, Oregon International Port of Coos Bay, Ocean Navigtion Dee Chamberlain, PhD., ARCO, Oil and Gas Jim.Wenzel, Marine Development Associates Inc., Marine Minerals" Jay Rasmussen, Director, Oregon Coastal Zone Management Association Debbie Boone, Clatsop County Commissioner, Coastal Counties (1987-88) Dave Werschkul, Curry County Commissioner, Coastal Counties (1989-90) Jayne Fraese, Public at Large Neal Maine, Public at Large Ellen Lowe, Public at Large Chief Edgar Bowen, Confederated Tribes of Coos, Lower Umpqua and Siuslaw, Coastal Indian Tribes Bruce Andrews, Director, Oregon Department of Agriculture Don Mann, Oregon Economic Development Department Nancy Rockwell, Deputy Director, Oregon Department of Energy Fred Hansen, Director, Oregon Department of Environmental Quality Rollie Rousseau, Deputy Director, Oregon Department of Fish and Wildlife John Beaulieu, Deputy State Geologist, Oregon Department of Geology and Mineral Industries Susan Brody, Director, Oregon Department of Land Conservation and Development James F Ross, Director, Oregon Department of Land Conservation and Development, 1987-88 Pete Bond, Ocean Shores Coordinator, Oregon Department of Parks and Recreation Martha Pagel, Director, Oregon Di n of State Lands vi@io *appointed pursuant to 1989 legislation "Note: Jim Wenzel, Marine Development Associates Inc., represented marine mineral interests as a Task Force member. Mr. Wenzel wishes to be disassociated from the final plan recommendations. The Oregon Ocean Plan Execufive Summary: Program AnaVst and RecommendaHons for Acrion January 1991 Property of CSC Library US Department of Commerce C731 NOAA Coastal Services Center Library co-) 2234 South Hobson Avenue Charleston, SC 294OS-2413 C-0 2 * Executive Summary The Oregon Ocean Resource Program 320 SW Sfark Rm 530 Porfland, Oregon 97204 (503)229-6068 Oregon's Ocean Plan is the result of the vision, leadership, and support of Senator Bill Bradbury, who foresaw the need for Oregon to take affirmative action to protect its ocean resources. The Oregon Ocean Resources Management Task Force Staff: Eldon Hout, Program Manager Robert Bailey, Outer Continental Shelf Coordinator Nan Evans, Senior Policy Analyst Jeff Weber, Coastal Ocean/GIS Specialist AcknoWedgen-)enfs: The Ocean Plan was prepared with the generous assistance of many individuals within state agencies, federal agencies, local governments, universities and the public at large. Their technical knowledge, insights, criticisms, and helpful suggestions are gratefully acknowledged. A special "thank you" is directed to the many Oregon citizens who cared enough to come to workshops and meetings, voice opinions or share knowledge, and write letters of comment. The Ocean Plan is the better for their participation. Funds for the preparation of the Ocean Plan were provided from the Oregon General Fund by the 1987 and 1989 Oregon Legislatures. Additional funds were provided by the U.S. Department of Commerce, National Oceanographic and Atmospheric Administration (NOAA), Office of Ocean and Coastal Resources Management (OCRM) through both a Section 306 Coastal Zone Management Grant and an Interagency Personnel Agreement. Executive Summary 9 3 InftoducHon This Executive Summary of the Oregon ministrative rules, identified and discussed Ocean Resources Management Plan (Plan) brief- in a section titled "Current Jurisdiction and ly describes the recommendations of the Plan Administration." and lists legislative and administrative changes 3) Legislative and/or administrative rule necessary to implement it. The Executive Sum- changes necessary to implement major Plan mary is presented in a narrative and chart for- recommendations, presented and discussed mat, both organized in a manner similar to the in a section titled "Necessary Implementa- Plan itself. tion Actions." Part I, Recommendations for Agency Action, Part III, Tools for Governing, contains a dis- consists of action recommendations laid out in cussion of certain procedural issues and topics chart form, by subject area. covered in the Plan: the Territorial Sea Plan, Part II, Ocean Resource Issues, consists of a Ocean Policy Advisory Council, Project Review narrative, organized as follows: Panels, Coastal Local Governments. 1) Major recommendations for each issue, Part IV, Indian Issues, represents a initial listed in a section titled "Summary of the identification of some of the ocean issues relat- Plan." ing to Indian Tribes. 2) Current state statutes and relevant ad- 4 Executive Summary The following abbreviations are used throughout this repott.- DEQ Department of Environmental Quality DLCD Department of Land Conservation and Development DOGAMI Department of Geology and Mineral Industries DSL Division of State Lands EFSC Energy Facility Siting Council EQC Environmental Quality Commission OFWC Oregon Fish and Wildlife Commission LCDC Land Conservation and Development Commission NMFS National Marine Fisheries Service OAR Oregon Administrative Rules ODFW Oregon Department of Fish and Wildlife OPAC Ocean Policy Advisory Council ORS Oregon Revised Statutes OTC Oregon Transportation Commission P&RD Parks and Recreation Department PRP Project Review Panel USFWS United States Fish and Wildlife Service Executive Summary o 5 1 Summory of Recommendcffons forAgencyAcfion Executive Summary 9 7 Ocean Fisheries (Plan pp. 59-80) Agency Recommendation Necessary Implementation Actions OFWCIODFW ' * Adopt marine habitat classification Statutory authority is sufficient. OFWC should system. adopt rules establishing: * Identify Important Fishery Areas. 1. Marine habitat classification system; * Conduct detailed biological, economic 2. Method and procedure of identifying Im- and risk assessments whenever portant Fishery Areas; and specific nonrenewable resource 3. Procedure and standards for evaluating projects proposed. risks of nonrenewable resource * Conduct and support research on im- projects. portant fishery areas. * Coordinate development of public education and interpretive programs. DSL * Prohibit all nonrenewable resource ac- Statutory authority is sufficient. DSL should tivities in 5 identified areas. adopt rules prohibiting nonrenewable resource activities in identified areas. 8 9 Executive Summary Marine Birds and Mammals (Plan pp. 81 - 100) Agency Recommendation Necessaty Implementation Actions OFWCIODFW Interim: 0 Allow fishing around all nearshore Statutory authority and rules are sufficient. rocks and islands. Long Term: * Conduct and support scientific re- Statutory authority is sufficient. OFWC should search. adopt rules establishing: * Identify key habitats. 1. Program for protection of marine birds * Establish criteria for designation and and mammals. protection of sensitive populations. 2. Protection criteria. * Examine resource protection needs of 3. Policy and/or procedure by which to specific sites identify key habitats. * Develop site-specific measures to 4. Criteria for reviewing uses and ac- protect sensitive populations. tivities. * Examine potential for state wildlife management refuges. * Review specific uses or activities for their effect on sensitive populations. DSL Interim: * Allow harvesting of renewable resour- Statutory authority is sufficient. DSL should ces around all nearshore rocks and is- adopt rules or policy requiring ODFW consult- lands unless ODFW determines that ation prior to allowing harvest of renewable specific activity adversely affects sen- resources around nearshore rocks and islands sitive populations. and prior to allowing academic and public agen- * Prohibit all other activities within 1/4 cy research regarding nonrenewable resources. mile of 33 identified sensitive areas. * Prohibit exploration and development of nonrenewable resources within 3 miles of all nearshore rocks and is- lands, but allow academic and public agency scientific research if ODFW determines that these activities will not adversely affect sensitive popula- tions. Executive Summary - 9 Intedidal Plants and Animals (Planpp. 101-111) Agency Recommendation Necessafy Implementation Actions OFWCIODFW 0 Conduct or support research on inter- New legislation giving ODFW clear lead role in tidal ecosystems. evaluating, establishing and managing Marine 0 Work with educators to develop public Gardens. Legislation should require consult- awareness. ation with OPAC and DSL in implementing 0 Act as lead agency for establishing any proposal for a Marine Garden. and managing Intertidal Marine Gar- dens. 0 Develop legislative proposals to define authority over Marine Gardens. P & RD * Expand educational and interpretive Statutory authority is sufficient. P & RD might programs on ocean resources at coas- enter MOU or MOA with OPAC, DSL, and tal state parks. ODFW. * Work with OPAC, DSL and ODFW to explore better management ap- proaches for intertidal areas. DSL * Coordinate with ODFW, OPAC and P General statutory authority is sufficient, except & RD to explore better management that exclusive jurisdiction over submerged and and protection approaches. submersible lands may need to be clarified to * Make any legal and fiduciary arrange- allow ODFW to take lead role in management. ments necessary to develop and desig- Kelp harvesting statute should be amended to nate Intertidal Marine Gardens. require ODFW approval prior to leasing. DSL might enter MOU or MOA with OPAC, P & RD and ODFW. 10 -, Executive Summary Recreation and Cultural Resources (Plan pp. 113-120) Agency Recommendation Necessary Implementation Actions P& RD * Coordinate recreational plan and Statutory authority is sufficient. P & RD strategy for Oregon coast that iden- should adopt rules establishing ocean watch tifies outstanding coastal and ocean sites. P & RD should also identify specific views, evaluates possible marine park marine park sites. and upland sites for new state parks, completes Beach Access Plan, and specifies proposals for a coordinated marine education and information pro- gram (i.e., Ocean Watch Sites). * In consultation with DSL and local governments, identify specific sites for marine parks that will be included in the Territorial Sea Plan. * Protect archeological sites and Amend ORS 358.915,358.920,390.235 to prohibit private exploitation on public prohibit any excavation along the ocean floor or lands. shore. (Alternative: amend to require OPAC review prior to issuing a permit). DSL 11 Protect treasure trove sites and Amend treasure trove laws (ORS 273.718-.742) prohibit private exploitation on public to prohibit all treasure trove permits along the lands. ocean shore or on the ocean floor. (Alternative: amend laws to require OPAC review prior to issuing a permit). Highway Division * Preserve major segments of Highway Statutory authority is sufficient (via statewide 101 as significant recreational, aes- land use planning goals). thetic and historic resources. * Incorporate ocean views, shoreline recreation and education into plans for improving Highway 101. Local Governments * Review comprehensive plans to assess Statewide land use planning laws are sufficient. effects of growth and development on recreation, tourism, cultural and es- thetic resources. * Identify sites appropriate for P&RD acquisition. Executive Summary * 11 Marine Air and Water Quality (Plan pp. 121-130) Agency Recommendation Necessary Implementation Actions DEO 0 Coordinate preparation of marine Statutory authority is sufficient. DEQ should water and air quality protection pro- adopt rules establishing new program gram that includes: provisions and consolidate scattered rules relat- Monitoring ing to marine water quality. Water quality discharge and dumping standards Research Marine debris management Improved siting standards, backup facilities and emergency procedures for municipal and industrial ocean out- falls. ODFW * Provide technical assistance. Statutory authority is sufficient. ODFW might * Coordinate establishment of baseline enter into MOU or MOA on coordination of the sites to monitor water quality and monitoring program. biological commodities. 12 * Executive Summary Oil and Gas Development (Plan pp. 131-140) Agency Recommendation Necessary Implementation Actions State Waters Majority Proposal. 0 Prohibit oil and gas exploration and development. DSL Statutes authorizing disposal and leasing of oil and gas would need to be repealed (ORS 274.710; 273.551). Repeal rules relating to leasing of oil and gas under submerged and submersible lands (OAR chapter 141, division 82). New legislation prohibiting oil and gas explora- tion and development within state territorial sea (i.e., make permanent ban established by 1989 Or Laws ch 895, 5). DOGAMI Amend ORS 520.025(l) (permit for drilling or using an oil or gas well) to prohibit permits for offshore oil and gas exploration and develop- ment. Minority Proposal * Consider exploration and develop- ment activities that do not adversely affect the ecological integrity and beneficial uses of marine water within the state territorial sea. * Allow inventories of inshore and con- tinental shelf areas. DSL Amend ORS 273.551 and 274.710, to allow leas- ing of oil and gas only if consistent with Plan and Territorial Sea Plan and amend to require OPAC approval prior to issuing a lease; amend OAR Ch. 141, Div. 82, to require OPAC ap- proval or a DSL determination that proposed lease is consistent with Plan and Territorial Sea Plan; amend ORS 196.800-.905 to require similar consistency. Federal Waters * Cancel Lease Sale #132. * Oppose any federal lease sale unless certain conditions met. * Participate in Pacific Northwest OCS Task Force. Executive Summary - 13 oil spills (Plan pp. 141-147) Agency Recommendation Necessary Implementation Actions DEO * Develop and update existing state New legislation to require any party engaging spill contingency plans. in petroleum exploration, production, storage * Ensure that oil spill contingency plans or transportation to develop an oil spill contin- identify spill prevention strategies. gency plan. DEQ -should then establish stand- * Identify specific state spill response ard elements for an adequate contingency plan. actions. Statutory authority for state contingency plans * Seek continued funding and industry is sufficient. commitment to develop and maintain DEQ should adopt administrative rules estab- response capabilities. lishing a comprehensive damage assessment * Develop comprehensive damage as- strategy, after consultation with ODFW. sessment strategy. * Require all parties engaging in ex- ploration production, storage or transportation of petroleum products to submit and get approval of a spill contingency plan. OFWCIODFW 0 Coordinate with DEQ in developing Statutory authority is sufficient. ODFW should comprehensive damage assessment adopt rules establishing a comprehensive strategy. damage assessment strategy, after consult- ation with DEQ. 14 9 Executive Summary Marine Minerals (Plan pp. 149-157) Agency Recommendation Necessaty Implementation Actions DSL Majority Proposal 0 Prohibit commercial mineral explora- Statutory authority is sufficient to prohibit com- tion and development in Important mercial mineral exploration and development Fishery Areas and within 3 miles of in Important Fishery Areas and within 3 miles sensitive offshore rocks and islands. of sensitive offshore rocks and islands. DSL should immediately adopt rules prohibiting mineral exploration and development within 3 miles of offshore rocks and islands. Once ODFW identifies Important Fishery Areas, DSL should prohibit exploration and develop- ment in these areas. * Implement 5-year moratorium on ex- Legislation imposing 5-year moratorium and re- ploration contracts. quiring PRP consultation prior to issuing marine mineral exploration contract once the moratorium expires. * Provide for PRP review and approval Adopt rule so requiring. of an inventory and environmental ef- fects assessment of exploration con- tracts. DSL * Amend ORS 274.640(6) and (7) to Amend ORS 274.640(6) and (7) as Plan recom- clarify that an exploration contract mends. confers no proprietary rights to minerals found and does not oblige the state to proceed with any steps toward mineral leasing and develop- ment. Minority Proposal * Cooperate with DOGAMI and ODFW Statutory authority is sufficient. DSL might to develop comprehensive research enter MOU or MOA with DOGAMI and ODFW plan to determine costs and benefits to develop comprehensive research plan. of marine mining. * Postpone proposed minerals research program scheduled for summer of 1990. LCDCIDLCD 0 Adopt rules that require an inventory Statutory authority is sufficient. LCDC should and effects assessment prior to any adopt rules under Goal 19. commercial exploration contract. Executive Summary * 15 Territorial Sea Plan (Plan pp. 163-165) Agency Summary of the Plan Necessary Implementation Actions Expand scope to cover., 0 Marine bird and mammal habitat Statutory change to 1987 Or Laws ch 576. New areas (evaluate sensitivity, focusing legislation should specify additional issues to on identified sensitive areas; provide be addressed, expand the preparation time, criteria and protection measures for and require State Land Board to coordinate populations and habitat). with OPAC in preparing Territorial Sea Plan. 0 Intertidal Marine Gardens (criteria for identifying, designating and managing, process for designating, list of sites, analysis of alternative management approaches, public education programs, proposal for any needed changes in state agency programs or authorities). 0 Marine water and air quality (air quality monitoring program; marine water quality monitoring program; dis- charge and dumping standards; im- proved siting standards, backup facilities and emergency procedures; research; marine debris management). 0 Oil and gas development. 0 Oil spill response (policies and stand- ards for oil spill contingency plan re- quirements, use of dispersant, liability limits, damage assessment and compensation. 0 Leases for cultivating or harvesting marine plans and animals. * Artificial reefs. * Recreation and cultural resources. * Dredged material disposal. * Marine minerals (clarify and refine policy, research plan for academic and public agency research, policies and criteria for rules to guide commercial exploration). 16 9 Executive Summary Ocean Policy Advisory Council (OPA C) (Plan pp. 166-167) Agency Recommendation Necessary Implementation Actions * Coordinate preparation of Territorial Legislation establishing OPAC, specifying Sea Plan. duties in implementing and developing Ocean * Provide forum for discussing ocean Resource Plan and Territorial Sea Plan. Legis- resource policy, planning and manage- lation should also specify the issues OPAC ment issues: should address, provide authority to adopt ad- Oppose any uses of nonrenewable ministrative rules, provide authority to estab- resources that might adversely impact lish Project Review Panels (including when ocean fisheries. panel is to be consulted and who may request Assess risks associated with develop- the consultation, require state agencies to ment of nonrenewable resources either adopt panel recommendations or justify rejection of the recommendation through writ- Document sites, develop alternatives ten findings and conclusions). and analyze protection proposals for marine birds and mammals Assist and facilitate efforts to estab- lish and protect Intertidal Marine Gar- dens Explore better management ap- proaches. * Recommend improvements to Ocean Resources Plan and Territorial Sea Plan. * Offer advice to Governor, State Land Board, state agencies and local govern- ments on specific ocean resource management issues. * Establish Project Review Panels and recommend when particular proposals should be reviewed. * Coordinate interagency and inter- governmental review of resource use through Project Review Panels. * Offer advice to Governor, State Land Board, state agencies and local govern- ments on specific ocean resource management issues. * Establish Project Review Panels and recommend when particular proposals should be reviewed. * Coordinate interagency and inter- governmental review of resource use through Project Review Panels. Executive Summary e 17 l/. Ocean Resource Issues 18 Executive Summary A. Ocean Fisheries management steps to protect important Summary of the Plan The Plan recommends that ODFW: fisheries and fish habitat and to undertake research on marine habitat and ecosystems 1) adopt a marine habitat classification sys- that support Oregon's commercial and tem; recreational fisheries; 2) identify "Important Fishery Areas" vital 2) oppose any use of nonrenewable resour- to recreational and commercial fisheries; ces that might adversely impact ocean 3) conduct detailed biological, economic, and fisheries; and risk assessments whenever a nonrenewable 3) provide a forum for evaluating risks as- resource project is proposed; sociated with the development of nonrenew- 4) conduct and support research on impor- able resources. tant fisheries and determine whether any Current Jurisdiction additional protection is needed; and. and Administration 5) coordinate the development of public education and interpretive program.s.about Under ORS 496.138 and 496.146, the the commercial.and recreational fishing in- OFWC formulates and implements the state's dustry. wildlife management policies and programs. In general, the Plan recommends that "Wildlife" includes fish, wild birds, amphibians, Oregon give clear priority to the management reptiles and wild animals. ORS 496.004(15). OFWC's authority is quite broad and allows it and protection of renewable resources over non- to perform all acts necessary to carry out the renewable resources throughout the Ocean Plan- ning Area. That recommendation includes a wildlife laws. ODFW and its director also havebroad authority to carry out the programs specific priority for commercial and recreational and policies established by OFWC and to estab- ocean fisheries over oil, gas, and mineral ex- lish divisions within ODFW. ORS 496.112 and ploration and development. The Plan identifies 496.118. Two divisions within ODFW are estab- five areas in which DSL should prohibit all non- lished by statute: the Fish Division and the renewable activities that could establish a Wildlife Division. ORS 496.124. The Fish proprietary interest: Heceta-Stonewall Banks, Division is responsible for the management of Coquille Bank, Astoria Canyon, Rogue Canyon, all fish and other marine life over which OFWC and the fishery grounds offshore from Cape has regulatory jurisdiction. ORS 506.142. Blanco. In other "Important Fishery Areas," the Oregon statutes separately define "game Plan recommends that specific uses of non- renewable resources should be allowed only if fish" and "food fish." "Game fish" include trout, ODFW determines that the proposed activity steelhead, char, greyling, Atlantic salmon, will not adversely affect commercial or recrea- white fish, salmon (when under 15 inches or tional fishery activities, fish habitat, or fish when taken by angling), green sturgeon, white population viability. sturgeon (when taken by angling), American The Plan recommends that OPAC: shad (when taken by angling), and yellow perch. ORS 496.009. "Food fish" are any animals over 1) encourage ODFW, NMFS, and the Pacific which the OFWC has jurisdiction under ORS Fishery Management Council to continue 506.036 (i.e., all fish, shellfish, and all other Executive Summary * 19 animals living intertidally on the bottom within public and private lands, to oppose any actions Oregon waters). Most of the pertinent ODFW that allow competition, predation or disease to and OFWC rules apply to both game fish and threaten natural production, and to oppose har- food fish. See OAR 635-07-501(10). Certain vest strategies that endanger the long-term statutory policies, however, apply only to food viability of a population or pose a risk to meet- fish and will be discussed separately. ing natural production objectives. OAR 635-07- By administrative rule, ODFW has adopted 523. ODFW has also established operating four goals for fish management and production: principles for wild fish management: 1) adopt management plans for fish species, 1) limit the interbreeding of hatchery and stream systems, or geographic areas to wild fish; achieve optimum populations and produc- 2) oppose habitat degradation and advocate tion of fish while maximizing the benefit to habitat restoration; Oregon's citizens, 3) oppose any actions that allow mortality of 2) ensure a wide diversity of fish use oppor- wild fish from competition, predation, or dis- tunities by managing for naturally spawned ease; and fish, hatchery fish, or a combination of 4) oppose harvest strategies that, by them- hatchery and naturally spawned fish, selves, cause a population decline to 300 3) optimize the use of any harvestable spawners in a five-year period. surplus of anadromous salmon, trout, and OAR 635-07-527. ODFW and OFWC may ex- other species, and empt a particular fish population from the wild 4) achieve and maintain an optimum and fish management policy if the OFWC finds that equitable harvest. social and economic considerations offset the OAR 635-07-510. See also OAR 635-07-515 biological consequences of losing the population (setting out ten policies necessary to achieve the and that the exemption, "when considered alone defined management goals, including protection and in light of any other exemptions that have of genetic resources, allocations based on biologi- been granted," will not cause a serious depletion cal requirements and sharing principles, and of the species in Oregon. OAR 635-07-528. consideration of all viable alternatives). The ad- ODFW and OFWC have established season, ministrative rules define "optimum" as the most gear and area restrictions, and closure dates for "desirable attained or attainable under implied the ocean commercial salmon fishery. OAR 635- or specified conditions to include the environ- 03-005 to 635-03-082. Restrictions have also ment, biology of the species, and political, been established for the rockfish, sablefish, coas- economic, and sociological considerations. OAR tal rivers shad, smelt, sturgeon, and thresher 635-07-501(34). shark fisheries, OAR 635-04-005 to 635-04-110, ODFW has established a natural production as well as the commercial shellfish fishery. OAR policy (how to maintain naturally spawned in- 635-05-001 to 635-05-220 (including abalone, digenous and introduced fish) and a wild fish Dungeness crab, red rock, box and tanner crab, management policy (how to manage crayfish, intertidal animal and mussels, oysters, anadromous salmon species, trout, sturgeon, or rock oysters, scallop, sea urchin, pink shrimp, fish species ODFW has designatedas "sensi- and spot, sidestripe and coonstripe shrimp tive"). OAR 635-07-521 to 635-07-524; 635-07- fisheries). ODFW and OFWC also have adopted 525 to 635-07-529. ODFW has established three landing restrictions and daily catch limits for operating principles for natural production sport fishermen. OAR 635-39-100 to 635-39-135 management: to protect and restore habitat on (including marine fish, halibut, shellfish, and other marine invertebrates). 20 * Executive Summary ODFW and OFWC have adopted rules relat- Beyond the territorial sea, federal law ing to commercial gear, including: general fish- governs. Under the Magnuson Fishery Conser- ing gear specifications and operation; fishing vation and Management Act, the Secretary of licenses for commercial fishermen and dealer Commerce established a regionalized, domestic license requirement for retail fish dealers; re- fishery management program. 16 USC 1801- quired records and reports for retail fish 1882 (1988). Each region is represented by a dealers, fish bait dealers,wholesale fish dealer, regional fishery management council, composed food fish canners, and shellfish canners; permit of a representative from the National Marine requirements for scallop and ocean pink Fisheries Service (NMFS), state fisheries shrimp; a Columbia River Gillnet salmon vessel management directors, and gubernatorially fleet reduction program; a restricted vessel per- recommended representatives. The member mit system for the Yaquina Bay roe-herring states of the Pacific Council are California, fishery; and a restricted permit system for the Idaho, Oregon, and Washington. The primary sea urchin fishery. OAR 635-06-005 to 635-06- purpose of all the councils is to develop fishery 650. In addition, ODFW`s administrative rules management plans, which recommend regula- include sport fishing regulation for fish, tions for the various fisheries based on the best shellfish, and marine invertebrates, OAR 635- scientific evidence available. These fishery 11-050 to 635-11-165, and sport salmon angling. management plans are submitted to the OAR 635-13-003 to 635-13-040. Secretary of Commerce for approval. The Pacific With the exception of oysters,' OFWC has Fishery Management Council has adopted and the Secretary has approved fishery manage- exclusive jurisdiction over all food fish (i.e., fish, ment plans for salmon and groundfish (which in- shellfish, and all other intertidal animals) within the waters of the state. ORS 506.011, clude several bottom and mid water species, 506.036. Oregon's statutory policy is to manage such as cod, rockfish, sole, and flounder). The food fish to provide the optimum economic, com- Magnuson Act also allows Oregon to regulate mercial, recreational and aesthetic benefits for vessels fishing beyond the territorial sea if such present and future generations of Oregon's vessels are registered in Oregon.2 citizens. ORS 506.109. Section 307(c)(1) of the Coastal Zone Oregon has entered into two compacts with Management Act requires that federal ac- other states, the Oregon-Washington Columbia tivities, such as the approval and implementa- River Fish Compact and the Pacific Marine tion of fishery management plans, be consistent Fisheries Compact with California and with Oregon's federally approved coastal zone Washington. ORS 507.010-.040. The Pacific management program "to the maximum extent Marine Fisheries Compact established the practicable." 16 U.S.C. 1464(c)(1). Goal 19 of the Pacific Marine Fisheries Commission, which statewide land use planning goals is part of has authority to recommend actions to preserve Oregon's coastal zone management program. fisheries and protect against over-fishing, but Under Goal 19, state and federal agencies shall: largely functions to coordinate activities be- 1) develop scientific information on commer- tween member state agencies. cially, recreationally, and ecologically impor- The Department of Agriculture hasjurisdiction over commercially cultivated oysters while OFWC hasjurisdiction over all native oysters. ORS 622.220. See also ORS 506.036(4). However, oysters are not covered either in the Plan or this paper because they live primarily in estuaries and are managed under existing estuary plans. 2 Or Atty Gen Op No 8182 (Nov 13, 1986) concluded that a vessel is "registered" within the meaning of the Magnuson Act, under Oregon law if it has a certificate of number and certificate of title from the State Marine Board, or has a commercial fishing license issued pursuant to ORS 508.006-.920. Executive Summary * 21 tant fish, shellfish, marine mammals and Although ODFW and OFWC have the requi- other marine animal species; site statutory authority to implement the Plan's 2) designate and enforce fishing regulations recommendations, OFWC will need to adopt to maintain the optimum sustainable yield rules to cover several recommendations, includ- while protecting the marine ecosystem; ing: 3) develop and encourage improved fishing 1) a marine habitat classification system; practices and equipment; and 2) a method for identifying "Important 4) develop an understanding of the effects of Fishery Areas" (in addition to the definition human activities on the marine ecosystem. outlined in the Plan); and Goal 19 also provides that since renewable 3) a procedure for assessing the risks and ocean resources and uses such as recreation, biological and economic effects of nonrenew- food production, water quality, navigation, and able resource projects. aesthetic enjoyment provide greater long-term ODFW and OFWC also should establish benefits than nonrenewable resources, plans guidelines for determination of whether a and activities of local, state and federal agencies fishery needs additional protection from non- must give priority to management and protec- renewable resource development. Finally, tion of renewable resources. LCDC has not yet ODFW should coordinate with P&RD in develop- adopted administrative rules to implement Goal ing public education and interpretive programs 19. about the commercial and recreational fishing Necessary industry. Implementation Actions DSVs statutory authority is sufficient to allow it to prohibit nonrenewable resource ac- The broad regulatory authority of ODFW tivities in the identified areas. See Marine Birds and OFWC over Oregon's commercial and and Mammals Section. The recommendations recreational fisheries allow implementation of for OPAC are general in nature and should be the Plan's ocean fisheries recommendations included as a goal or policy in the legislation es- without the need for statutory change. (It tablishing the OPAC. See Ocean Governance should be noted, however, that the statutes Section. The recommendation to prioritize under the jurisdiction of agencies responsible management and protection of renewable for permitting nonrenewable resource projects, resources over nonrenewable resources is al- such as DSL and DOGAMI, may need to be ready incorporated in Goal 19, and requires no changed in order to require ODFW and OPAC legislative change. reviewprior to project approval. See the Oil and Gas; Marine Minerals Sections.) 22 Executive Summary B. Marine Birds and Mammals Summary of the Plan 3) establish criteria for designation and protection of sensitive populations and The Plan generally calls for strengthened state protection of marine birds and mammals evaluate the sensitivity of populations at (especially endangered, threatened, and sensi- specific sites; tive species) and their habitats. To accomplish 4) examine the resource protection needs of this, the Plan recommends that the Territorial specific sites; Sea Plan evaluate the sensitivity of specific 5) develop site-specific measures to protect marine wildlife and its habitat, focusing on thir- sensitive populations and their habitats; and ty-three sensitive areas identified in the Plan. 6) examine the need to establish state The Plan also recommends that the Territorial wildlife management refuges overlying or Sea Plan provide criteria for determining which surrounding federal wildlife refuges and populations and habitat to protect, and provide develop a co-management scheme with site-specific measures to protect these popula- USFWS for those areas. tions and habitat. However, until the Territorial Sea Plan is Under the Plan, OPAC is to act as the policy complete, the Plan recommends certain interim forum for documenting specific sites, developing approaches, including: alternatives for resolving use conflicts and analyzing proposals for additional protective 1) allow fishing and harvesting of renewable measures. OPAC is also to assist state agencies resources around nearshore rocks and is- in providing immediate protection for stressed lands unless ODFW determines that a marine bird or mammal communities and specific use or activity adversely affects sen- developing interpretive programs. sitive marine bird or mammal populations; Current Jurisdiction 2) prohibit all other activities, other than and Administration those necessary to save human life, within V4 mile of the thirty-three sensitive areas; OFWC has authority to formulate and im- and plement policies and programs for the manage- 3) prohibit exploration and development of ment of marine birds and mammals, pursuant nonrenewable resources within three miles to its authority to perform all acts necessary to of all nearshore rocks and .islands, with the administer and carry out the wildlife laws. ORS exception of academic and public agency 496.138. Wild birds and wild mammals are in- scientific research on nonrenewable resour- cluded in the definition of "wildlife." ORS ces, which will be allowed only if ODFW 496.004. Under OAR 635-44-130, it is unlawful to trap, pursue, kill, take, catch, angle for or pos- determines that these activities will not ad- sess any seal, sea lion, sea otter, fisher or any versely affect sensitive marine bird or mam- mal populations. other nongame bird. OFWC has not adopted any other specific rules relating to marine birds The Plan recommends that ODFW should: and mammals. 1) conduct and support scientific research Under the state Endangered Species Act, on marine birds, mammals, and their the OFWC has a mandate to identify and estab- habitats; lish programs to protect and conserve 2) identify key habitats; threatened and endangered wildlife species. Executive Summary * 23 ORS 496.172. OFWC has listed as endangered 274.710. (This includes the "wet" areas sur- under the state Endangered Species Act: the rounding the Oregon Islands National Wildlife Aleutian Canada goose, the American peregrine Refuge.) DSL is required to give consideration falcon, the California brown pelican, and the to the protection and conservation of all natural gray, right, blue, fin, sei, humpback and sperm resources, including scenic and recreational whales. These same species are also on the resources, "so as to conserve the public health federal Endangered Species List. The bald eagle and recreational enjoyment of the people, and western snowy plover are listed as protect property and human life, and conserve threatened species under state law. The bald plant, aquatic and animal life," in its considera- eagle is also listed as a threatened species tion of the sale, exchange or lease of any state under federal law. In addition, ODFW main- lands. ORS 273.051(2)(b). DSL has promulgated general rules for leas- tains a list of "sensitive" species, which include the fork-tailed storm petrel, dusky and cackling ing state-owned submerged and submersible Canada geese,northern goshawk, greater yel- lands that describe the lease application lowlegs, long-billed curlew, marbled murrelet, process, the factors considered in review of an purple martin, bank swallow, and the northern application, and the lease terms and rates. OAR sea lion. 141-82-005 to 141-82-050. DSL also has rules The state Endangered Species Act requires governing the granting of easements and right that before a state agency takes, authorizes, or of ways across state-owned submerged and sub- provides direct financial assistance for any ac- mersible lands. OAR 141-83-010 to 141-83-700. tion on state owned or leased land, it must deter- In addition, DSL has closed several estuaries to mine that the action is consistent with motor vehicles. OAR 141-84-010 to 141-84-100. programs established by ODFW for threatened Finally, DSL has adopted rules regulating or endangered species or that the action will not public uses of the South Slough Estuarine reduce the likelihood of the survival or recovery Sanctuary. OAR 142-10-005 to 142-10-060 of threatened and endangered species. ORS (adopted in accordance with the South Slough 496.182. If the state agency determines that the Estuarine Sanctuary Management Plan, ORS action has the potential to reduce the likelihood 273.533-.558, a federal grant-in-aid, and the of survival or recovery, it must notify ODFW, Coastal Zone Management Act). and ODFW is required to recommend 11 reasonable and prudent" alternatives. The con- Necessaty sulting agency then must either Implementation Actions 1) adopt ODFW`s recommended alternative Prior to completion of the Territorial Sea or Plan, the Plan recommends certain interim ap- 2) demonstrate that the potential benefits of proaches. Actions necessary to implement these the proposed action outweigh the potential interim approaches are analyzed below. Under harm and that reasonable mitigation and en- current state law, OFWC and ODFW have authority generally to establish programs for hancement measures are taken, to the ex- tent practicable, to minimize the adverse the conservation and protection of listed species, impacts on the affected species. Id. and to develop programs to protect marine bird and mammal habitats. Thus, ODFW and OFWC USFWS manages the dry land sections of already have the statutory authority to conduct the rocks and islands that are part of the and support research, identify key habitats, es- Oregon Islands National Wildlife Refuge. DSL tablish protection criteria, develop site-specific has exclusive jurisdiction over all ungranted protection measures, and evaluate the need for tidal submerged lands owned by the state. ORS a state wildlife refuge system. ODFW alsohas 24 9 Executive Summary sufficient authority to close or restrict fishing quirements, DSL could issue regulations around nearshore islands. See Ocean Fisheries prohibiting all activities around nearshore rocks Section. To implement the Plan, OFWC should and islands if it finds that such activity would promulgate rules which describe the criteria for endanger the public health and recreational en- designation and protection of sensitive popula- joyment, would not protect property or human tions and the site-specific measures to be used life, or would not conserve plant, aquatic or to protect those populations and their habitats. animal life. Thus, to implement the Plan, DSL ODFW will also need to develop policies and will need to adopt rules or a policy demonstrat- management goals specific to marine birds and ing that DSL has duly considered these factors. mammals. Once the Territorial Sea Plan is complete, Because of its exclusive jurisdiction and DSL will need to issue regulations requiring con- power to issue rules and regulations, DSL also sultation with ODFW for a determination of has sufficient statutory authority to implement whether academic and public agency scientific the interim measures recommended by the research on nonrenewable resources would ad- Plan. DSL will need to issue regulations versely affect sensitive marine birds and mam- prohibiting all activities within 1/4 mile of the mals. Under the current statutory scheme, DSL identified thirty-three sensitive areas. DSL may is not required to consult with ODFW on issues also need to issue regulations prohibiting the ex- concerning "sensitive" species, only threatened ploration and development of nonrenewable or endangered species. ORS 496.182(2). How- resources within three miles of the nearshore ever, DSL may choose to consult an agency with areas. (However, oil and gas exploration has a particular expertise. ORS 273.155. To imple- been suspended under state statute. Thus, rules ment the interim recommendation, DSL should may not be needed for oil and gas development adopt a policy requiring ODFW consultation if the statutory suspension is long enough to prior to allowing academic or public agency allow the State Land Board to complete the Ter- scientific research. (NOTE: If the type of non- ritorial Sea Plan. See Oil and Gas and Marine renewable resources research contemplated by Minerals Sections.) this section includes exploration, the recommen- As noted, the Plan recommends that all ac- dation to allow research on nonrenewable tivities that threaten marine bird and animal resources may conflict with the Oil and Gas populations around nearshore rocks and islands Section's majority recommendation to prohibit be prohibited. Under the current statutory all exploration and development, even for re- search purposes. See Oil and Gas Section for a scheme, DSL has exclusive jurisdiction over more thorough discussion). these areas and may lease these lands for a variety of purposes. Article VIII, section 5(2) of DSL also has sufficient statutory authority the Oregon Constitution, however, requires the to restrict the harvesting of kelp and other State Land Board to "manage lands under its seaweed in order to protect nearshore areas. jurisdiction with the object of obtaining the DSL is required to consult ODFW prior to leas- greatest benefit for the people of this state, con- ing any submerged lands for kelp harvesting. sistent with the conservation of this resource See Intertidal Plants and Animals Section. under sound techniques of land management." The recommendations for OPAC are general In addition, all DSL leases are subject to "due in nature and should be included in the legisla- consideration" for the protection and conserva- tion which establishes OPAC. See Ocean Gover- tion of all natural resources. ORS 273.051(2)(b). nance Section. Under these constitutional and statutory re- Executive Summary * 25 C. Intedidal Plants and Animals Summary of the Plan proaches to intertidal areas. The Plan recom- The Plan's primary goal for intertidal plants mends that DSL coordinate with ODFW, and animals is to protect intertidal ecosystems P&RD, and OPAC to explore better manage- from adverse changes. The Plan recommends ment and protection approaches and make any that the state promote public understanding of legal and fiduciary arrangements necessary to intertidal habitats and establish Intertidal develop and designate Intertidal Marine Gar- Marine Gardens to protect particularly vul- dens. nerable areas. To accomplish this goal, the Plan Finally, the Plan recommends that OPAC recommends that the Territorial Sea Plan in- assist, encourage, and facilitate the efforts of clude: local communities and state agencies to estab- 1) criteria for identifying, designating, and lish and protect Intertidal Marine Gardens. managing Intertidal Marine Gardens; Current Jurisdiction 2) a process for designating Intertidal and Administration Marine Gardens that allows public par- ODFW and OFWC have broad statutory ticipation; authority to develop wildlife protection 3) a list of specific sites for designation; programs and perform any actions necessary to 4) an analysis of alternative management carry out the wildlife laws. ORS 496.138. Pur- approaches for Intertidal Marine Gardens; suant to that statutory authority, OFWC has 5) public education programs for Intertidal adopted general rules that restrict the method Marine Gardens; and of harvesting intertidal animals and make it un- lawful to waste fish, shellfish, and marine inver- 6) proposals for any needed changes in state tebrates. OAR 635-11- 100 to 635-11-165 and agency programs or authorities. 635-39- 100 to 635-39-135. ODFW has not The Plan identifies eleven locations that developed specific rules for bottom dwellers should be initially included in the Territorial beyond the intertidal zone or for non-bottom Sea Plan's analysis of Intertidal Marine Garden dwellers within the intertidal zone, although it sites. has statutory jurisdiction to do so. However, The Plan recommends that ODFW conduct ODFW has closed certain "marine garden" or support research on intertidal ecosystems, areas to the taking of marine invertebrates, work with educators to develop public aware- clams, and mussels. OAR 635-39- 110 (Otter ness programs, serve as lead agency in the Rock, Cape Perpetua, Haystack Rock/Cannon development of Intertidal Marine Gardens, con- Beach and Yaquina Head Natural Area. Ya- sult with OPAC and DSL in implementing Inter- quina Bay and Netarts Bay are also closed to clamming in posted shellfish preserves, while tidal Marine Gardens and develop legislative Whale Cove is closed to the taking of fish and proposals to define its authority over Intertidal shellfish). ODFW has not defined the term Marine Gardens. The Plan recommends that marine garden" in its administrative rules. P&RD should expand educational and interpre- tive programs on ocean resources at coastal DSL has exclusive jurisdiction over tidal state parks, and work with OPAC, DSL, and submerged and submersible lands, which in- ODFW to explore better management ap- cludes the harvesting of intertidal plants (i.e., kelp). ORS 274.885. DSL may lease submerged 26 * Executive Summary state lands for kelp or other seaweed harvest- ODFW be the lead agency, ODFWs statutes ing, but only after consultation with OFWC. should be amended to clearly give it lead DSL has not promulgated specific rules govern- authority in evaluating, establishing, and ing kelp harvesting. Instead, DSL considers managing Intertidal Marine Gardens. kelp harvesting to be aquaculture, as defined in Legislation is also necessary to implement OAR 141-82-005 ("harvesting ... natural crops the Plan's recommendation that ODFW consult so as to maintain an optimum yield"). As such, OPAC and DSL in implementing the Intertidal it requires a general lease from DSL. OAR 141- Marine Gardens, because each of these agencies 82-010(2)(a). will be responsible for resources and policies By administrative rule, DSL has estab- that will have an effect on the Intertidal Marine lished a general lease application process, as Gardens. See Oil and Gas, Marine Minerals, well as general lease terms and rates, that and Ocean Governance Sections. In addition, apply to any application for kelp harvesting. DSI:s exclusive statutory jurisdiction over sub- OAR 141-82-015 to 141-82-050. By statute, how- merged and submersible lands may need to be ever, the lease term for kelp harvesting may not amended in order to allow ODFW to take the exceed 50 years and all kelp leases require the lead in managing the Intertidal Marine Gar- lessee to harvest at least 1,000 tons of kelp or dens. DSI:s statutes currently provide DSL other seaweed within any one year. If the lessee with exclusive authority to lease submersible fails to harvest at least 1,000 tons, DSL may lands for kelp harvesting, although it must con- cancel the lease. ORS 274.885. sult with OFWC prior to granting any lease. The statute might more effectively implement Necessary the Plan's recommendation of establishing Implementation Actions ODFW as the lead agency if it required ODFW The primary thrust of the Plan recommen- approval prior to leasing, rather than mere con- dations is to establish an Intertidal Marine Gar- sultation. den system. ODFWs authority to establish DSL and P&RD have sufficient statutory Intertidal Marine Gardens is not express in its authority to implement the Plan's recommenda- statutes. However, ODFW has used its tions for coordination of the Intertidal Marine authority to regulate the harvest of intertidal Garden program and expansion of existing animals to allow it to establish "marine garden" programs. DSL will need to adopt kelp harvest- areas in which certain harvest activities are ing policies consistent with the Intertidal prohibited. To implement the Plan's recommen- Marine Garden program. It may be desirable for dation of establishing Intertidal Marine Gar- P&RD, DSL, OPAC, and ODFW to enter into a dens based on the entire intertidal ecosystem, Memorandum of Agreement to coordinate however, the legislature will need to give management and designation of Intertidal ODFW clear lead authority. Under current law, Marine Gardens. ODFW is responsible for regulating intertidal The recommendations for OPAC are general animal life; DSL is responsible for the sub- in nature and should be included in th .e legisla- merged land and plant life; and P&RD is respon- tion which establishes OPAC. sible for state parks. See Recreation and Cultural Resources Section. In order to effective- ly implement the Plan's recommendation that Executive Summary 0 27 D. Recreation and Cultural Resources Summary of Plan ever, P&RD and the State Land Board have con- current jurisdiction to undertake appropriate The Plan recommends that P&RD prepare court proceedings to protect, settle, and confirm and coordinate a comprehensive recreational all public rights and easements in the state. plan and strategy for the Oregon coast that: ORS 390.620(l). Furthermore, DSL has jurisdic- 1) identifies outstanding coastal and ocean tion over mining and drilling leases for valuable views; mineral deposits, ORS, 273.551, and leases and 2) evaluates possible marine park sites and easements for oil, gas and sulphur, ORS upland sites for new state parks; 274.710 within the recreation area. See Marine 3) completes the Beach Access Plan; and Minerals section. Furthermore, pursuant to 4) specifies proposals for a coordinated ORS 390.620(3), DSL is directed to carry out its marine education and information program duties with respect to the submerged and sub- (including the establishment of Ocean mersible lands of the Pacific shore consistent Watch Sites at scenic viewpoints along high- with its statutory authority to lease and grant easements to submerged and submersible lands. ways and in parks). See ORS 274.705 -.895. The Plan calls for an amendment of the ar- To construct any improvement on the ocean chaeological and treasure trove laws to protect shore (the land lying between extreme low tide archaeological sites and shipwrecks and to and the line of vegetation), a person must obtain prohibit private exploitation on public lands. a permit from P&RD. The standards for approv- The Plan also recommends that the High- ing a permit are outlined in ORS, 390.655 and way Division preserve major segments of High- OAR chapter 736, division 20. They include: way 101 as significant recreational, aesthetic, 1) public need for healthful, safe and aes- and historical resources, and incorporate ocean views, shoreline recreation and education into thetic surroundings, the natural scenic, plans for improving Highway 101. recreational, and other resources of the area, the present and prospective need for Finally, the Plan also recommends that conservation and development of those local governments review their comprehensive resources; plans to assess the effects of growth and develop- 2) the physical characteristics and ment on recreation, tourism, and cultural and suitability of the area for improvement; aesthetic resources. Local governments should also identify sites appropriate for acquisition as 3) the land uses and improvements already recreational or scenic sites by P&RD. present in the area, and the trends, density and value of property and improvements in Current Jurisdiction the area; and and Administration 4) the need for future recreation and access ORS 390.615 vests ownership of the shore of to particular sites in the area. the Pacific Ocean between ordinary high tide Removal of sand, rock, mineral, marine and extreme low tide in the State of Oregon and growth or other natural products of the ocean makes the entire shoreline a state recreation shore (other than fish and wildlife) is prohibited area. As such, the Pacific shore is under the except by a P&RD permit. ORS 390.725. How- jurisdiction of the P&RD. ORS 390.605(3). How- 28 9 Executive Summary ever, P&RD must consult with ODFW, and accesses, and any local zoning or use restric- DOGAMI and DSL prior to issuing any permit. tions affecting the area. Id. P&RD has not P&RD has promulgated rules concerning the adopted any rules regarding land acquisition. removal of natural products from the ocean Under ORS 358.920 and 390.235, the inten- shore. OAR 736-20-035. In addition to meeting tional excavation and alteration of an ar- these statutory standards, an application for chaeological site or removal of an archaeological the removal of sand and rock must also object is prohibited without a permit from demonstrate that the sand or rock is essential P&RD. Approval of the responsible state agen- to meet the reasonable need for essential con- cy, local governing body, or Indian tribe is re- struction uses in the area and that it is not quired when the excavation or removal takes otherwise obtainable at reasonable cost. OAR place on public land. ORS 390.235. However, 736-20-035. In other words, economic considera- the permit requirement does not apply to a per- tions play a role in determining whether an ap- son who unintentionally discovers an ar- plication for the removal of sand and rock is chaeological object on public or private property approved. ORS 390.725 (3). and keeps the object for personal use. ORS Under ORS 390.668, P&RD has adopted 358.915. rules governing vehicle use on the ocean shore DSL is responsible for regulating "treasure- and established vehicle use zones. OAR 736-22- trove" exploration on state-owned lands, includ- 005 to 736-22-010 & 736-24-005 to 736-24-045. ing exploration along the ocean shore and P&RD requires a vehicle permit for the underneath the ocean surface. ORS 273.722. restricted zones. OAR 736-22-010. The fill and "Treasure-trove" includes money, coin, gold, sil- removal laws, ORS 196.800 -.990, apply as well ver, precious jewels, plates and bullion found to activities on the beach. hidden in a private place where-the true owner ORS 390.140 directs the P&RD Director to is not known. ORS 273.718. However, in Oc- study and appraise the recreation needs of tober 1989, the State Land Board imposed a Oregon, as well as assist in the development moratorium on the issuance or renewal of and coordination of recreation facilities, ac- treasure trove permits pending program review tivities, and programs. In addition, P&RD has and possible legislative change. adopted a State Park Master Plan for each state Prior to the moratorium, DSL could issue park, including parks along the ocean shore. permits for treasure-trove exploration and could ORS 390.180; OAR 736-18-000. Under the direc- establish permit conditions "as required under tion of the P&R Commission, the P&R Director the circumstances." ORS 273.728. However, may assist any state agency in rendering recrea- DSL did not have any standard conditions. If an tion services and assist in the coordination of individual discovered treasure trove without a federal, state and local recreation facilities, per- permit, DSL assumed control (but not physical sonnel, activities, and programs. ORS custody) of the goods. If the rightful owner could 390.140(2). not be found, the goods became the property of P&RD is also authorized to acquire land ad- the state. ORS 273.737. Although the finder jacent, abutting or contiguous to the ocean could not recover the treasure trove itself, he shore for state recreation areas or for access to could make a claim to DSL for part of the the shore or recreation areas. ORS 390.630. To treasure trove's value. ORS 273.742. acquire private land, P&RD must consider the The Highway Division and the Oregon availability of other public lands, the land uses, Transportation Commission (OTC) are respon- improvements and density of development in sible for the state and federal highway systems, the vicinity, the existing public recreation areas which includes Highway 101 along the Oregon Executive Summary * 29 coast. ORS 366.205. According to the Plan, the chaeological resources are removed. Alternative- Highway Division and OTC are completing a ly, the statutes could be amended to require study of Highway 101's coastal corridor which OPAC approval or consistency with the Plan will make recommendations on traffic flow im- prior to issuing any permits. provements. Under current law, OTC and the The treasure trove statutes also need Department of Transportation may consult with amendment in order to prohibit private explora- the state historic preservation officer and other tion. One approach would be to prohibit all groups on the rehabilitation of designated treasure trove permits along the ocean shore or scenic or historic highways. ORS 377.105. How- on the ocean floor. Since permit issuance is dis- ever, no other consultation appears to be re- cretionary with DSL, DSL could probably ac- quired. complish this goal through administrative rules Necessory that prohibit treasure trove permits along the Implementotion Actions ocean shore or on the ocean floor. Alternatively, The Plan's Irecommendations for P&RD are the treasure trove laws could be amended to prohibit all permits along the ocean shore and within its current statutory authority. ORS on the ocean floor or to require consistency with 390.140 requires the P&RD Director to study the Plan or OPAC approval. and appraise the recreation needs of Oregon. The preservation of Highway 101 is within This directive should allow P&RD to conduct the Highway Division's current authority if the the study called for in the Plan. Furthermore, segments under improvement consideration are P&RD's current statutes call for it to assist in designated as scenic and historic highways. For the development and coordination of recreation those segments, no further statutory authoriza- facilities, activities, and programs which is suffi- tion is necessary because OTC and the Highway cient authority for P&RD to evaluate and iden- Division are required to provide for the tify possible marine and upland park sites and rehabilitation, restoration, maintenance, and establish proposals for marine education and in- preservation of those scenic or historic features formation programs. The Ocean Watch Site pro- whenever prudent and feasible. ORS 377.105(l). gram could be established by administrative For those segments not designated, however, rule under P&RD's current statutory authority. the Highway Division's statutory authority The current statutory scheme for treasure should be amended to require that any improve- trove and archaeological resources, absent a ment of Highway 101 that may affect the scenic moratorium, allows private exploration of these and natural resources of the Oregon coast comp- resources on state-owned lands. For the most ly with the Plan. Alternatively, OTC and the complete protection of archaeological resources, Highway Division could be required to confer ORS 358.915, 358.920 and 390.235 should be with OPAC on any proposed modification of amended to prohibit any excavation along the Highway 101. ocean shore or on the ocean floor. A complete ban on excavation would insure that no ar- 30 * Executive Summary E. Marine Water and Air Quality Summary of the Plan minimum requirements for disposal of wastes, The Plan recommends that the appropriate as provided in the Federal Water Pollution Con- state and federal agencies develop a coordinated trol Act (Clean Water Act). ORS 468.725 and marine water and air quality protection pro- 468.735; OAR 340-41-001 to 340-41-975. DEQ gram that includes monitoring, marine water has adopted specific policies, standards, and quality discharge and dumping standards, re- treatment criteria for several basins, including search, marine debris management, and im- the North Coast-Lower Columbia Basin, the proved siting standards, backup facilities and Mid Coast Basin, and the South Coast Basin. emergency procedures for municipal and in- OAR 340- 41-202 to 340-41-215; 340-41-242 to dustrial ocean outfalls. The Plan recommends 340-41-270 and 340-41-322 to 340-41-335. that DEQ coordinate preparation of the pro- Three agencies, DEQ, ODFW, and the Attor- gram for the State of Oregon, and that ODFW ney General have authority to bring an action provide technical assistance for the develop- against any person responsible for the injury, ment of the program and the establishment of death, contamination, or destruction of fish or baseline sites to monitor marine water quality other wildlife as a result of water pollution or and biologic communities. The Plan recom- violation of a pollution permit. Such person is mends that DLCD assist coastal local govern- strictly liable for the value of the fish or wildlife ments in developing policies to reduce and destroyed and any restoration costs. ORS promote public awareness about marine pollu- 468.745. Neither DEQ nor ODFW has adopted tion. Finally, the Plan recommends that the Ter- administratively standards by which to ritorial Sea Plan include protective measures evaluate the value of damaged fish and wildlife; for marine water and air quality. however, ORS 496.705 provides statutory values for many species. Current Jurisdiction DEQ, acting through the EQC, may estab- and Administration lish air purity standards and air emission stand- DEQ has broad authority to regulate water ards for all of Oregon or for particular airsheds. pollution. ORS 468.705. In general, it is unlaw- ORS 468.295. DEQ has established a number of ful for any person to cause pollution or dis- air emission standards for special control areas, charge wastes into the waters of the state but coastal areas are not specifically designated without a permit issued by DEQ. ORS 468.720 as such. and 468.740. The regulations pertaining to OAR 340-21-010. However, DEQ has estab- those permits are set forth at OAR 340-45-005 lished standards for municipal waste in- to 340-45-075. DEQ also has authority to regu- cinerators that apply specifically to coastal late sewage treatment systems and to review all areas. OAR 340-21-027. DEQ has also estab- plans and specifications for the construction, in- lished general gaseous emission standards for stallation, and modification of those plants. sulphur-content fuels, sulphur dioxide, and ORS 454.005.-805, 468.742; OAR 340-52-005 to volatile organic compounds that apply 340-52-050. throughout the state. OAR 340-22-005 to 340-22- Acting through the EQC, DEQ has estab- 300. Finally, DEQ has set ambient air quality lished both specific and general effluent limita- standards that apply throughout the state. OAR tions, water quality standards, and other 340-31-005 to 340-31-130. Executive Summary * 31 DEQ is also required to prepare a com- marine water and air quality protection pro- prehensive air pollution abatement plan for any gram recommended by the Plan. DEQ can imple- area of the state "in which air pollution is found ment the program by establishing the Ocean already existing or in danger of existing." ORS Stewardship Area as a specific airshed under 468.305. DEQ is also authorized to require per- ORS 468.295. DEQ can then adopt specific mits for air contamination sources by type of air policies, standards, and treatments for the area. contaminants, by type of air contaminant DEQ may want to incorporate current rules source, or by area of the state. ORS 468.065 and that are specific to coastal areas into the marine 468.310. Moreover, DEQ may review construc- water and air quality protection program (e.g., tion plans and specifications for any new air con- the standards for municipal waste incinerators). taminant sources and may deny approval for ODFV also has sufficient statutory failure to meet established air quality stand- authority to provide technical assistance and to ards. ORS 468.325. DEQ may grant variances establish baseline monitoring sites for the pro- from the air contamination rules and standards gram. Under ORS 496.146(11), ODFW may or may delegate that authority to local govern- enter in@o contracts with any person or ments. ORS 468.345. DEQ has adopted ad- governmentaf agency for the development and ministrative rules implementing these encouragement of wildlife research and manage- provisions. OAR 340-20-001 to 340-20-320. ment programs and projects. Furthermore, Necessary ODFW, acting through OFWC, has authority to Implementation Actions implement state wildlife policies and programs. ORS 496.138. DEQ's current legislative authority is broad enough to allow it to develop and coordinate the F. 0H and Gas Devolopment Summary of the Plan areas, to develop a better understanding of the The Plan recommendations regarding oil resources and potential impacts. and gas leasing are organized in recognition of In federal waters, the Plan calls upon the the distinction between state and federal Secretary of the Interior to cancel Lease Sale waters. In addition, the Plan recommendations No. 132. (Since the Plan was written, Lease with regard to state waters contain both a Sale No. 132 has been cancelled.) The Plan also majority and a minority position. recommends that the state oppose any federal In state waters, the majority recommenda- lease sale until certain conditions are met, in- tion is to prohibit all oil and gas exploration and cluding: consideration of energy alternatives; development. The minority position recom- consideration of tribal rights; environmental mends consideration of exploration and develop- studies recommended by OPAC; consideration of onshore impacts; exclusion of identified spe- ment activities that do not adversely affect the cial management areas; development and adop- ecological integrity and beneficial uses of these tion of an oil spill presentation and response waters. The minority recommendation calls for inventories of inshore and continental shelf plan; development of damage assessment stand- 32 9 Executive Summary ards and protocols; establishment of a compen- to give due consideration to the protection and sation program; and compliance with all state conservation of all natural resources when sell- environmental standards. The Plan recom- ing, exchanging, or leasing any lands under its mends that Oregon participate in the Pacific control. ORS 273.051(2)(b). Furthermore, leas- Northwest OCS Task Force. Finally, the Plan ing must be carried out in conformance with calls upon Congress to review and revise the Goal 19. ORS 197.250. Goal 19 requires state Outer Continental Shelf Lands Act to give and federal agencies to provide that extraction priority consideration to renewable resources of materials from or discharge of waste products and to include coastal states as full partners in into or affecting the territorial sea do not sub- all management decisions. stantially interfere with, or detract from, the use of the continental shelf for fishing, naviga- Current Jurisdiction tion, recreation, or aesthetic purposes, or from and Administration the long-term protection of renewable resources. 1989 Or Laws, ch 895, section 5 establishes ORS 274.755 requires DSL to hold a public a six-year moratorium on any form of leasing hearing before granting an easement or offering for exploration, development, or production of lands for leasing. In granting the easement or oil, gas, or sulphur within the territorial sea. lease bidding, DSL must consider whether the The moratorium does not apply to exploration easement or lease would: for academic research purposes or geologic sur- 3 1) be detrimental to the health, safety and vey activities conducted by DOGAMI. When welfare of the affected persons; the moratorium ends, 1989 Or Laws, ch 895 re- quires that any exploration for oil, gas, or sul- 2) interfere with residential or recreation phur in the territorial sea conform to the areas; standards of the Plan. 3) destroy, impair or interfere with the af- The following is a summary of the statutory fected area@s scenic value; and administrative framework applicable to oil, 4) create any pollution; gas, and sulphur exploration and development 5) substantially endanger marine life or (both within and outside of the territorial sea). wildlife; However, the effect of the moratorium is the 6) substantially interfere with commerce or suspension of this statutory scheme, as it per- navigation; and tains to oil and gas leasing, within the ter- ritorial sea. 7) protect state lands from drainage of oil Prior to the moratorium, DSL had authority and gas. DSL must also consult with to dispose of oil, gas, and sulphur under state DOGAMI, ODFW, and any other interested tidal submerged and submersible lands. ORS agencies, boards, and commissions regard- 274.710(2). DSL also had authority to issue oil ing the provisions contained in the leases. and gas leases underlying the ocean shore. ORS ORS 274.280(l). 274.710(3)(b). DSL could grant easements on gubmerged and submersible lands lying state-owned lands to aid in the extraction and more than ten miles east of the 124th West transportation of oil, gas, or sulphur from state, Meridian are subject to leasing under ORS private, and federal lands. ORS 274.710(3)(a). 273.551. That section authorizes DSL to execute DSI!s general powers and duties require it leases upon conditions agreed upon by DSL and 3 An "academic research purpose" was not defined by the legislature, although it presumably includes research conducted by academic insstitutions and public agencies. Executive Summary * 33 the lessee, after consultation with DOGAMI and they are carried out in a safe and efficient man- any state agency acting for the State of Oregon ner. DOGAMI also maintains certain records on with respect to surface rights in the subject oil and gas exploration and drilling. ORS land. The leases have no time limitation, but 520.095(2); OAR 632-10-017, 632-10-018, 632- 10- the lessee must diligently prospect, develop, or 142, 632-10-144,632-10-166, 632-10-194,632-10- operate the well. 196, and 632-10-198. (Although these rules are DSL has adopted rules for leasing state- generic in nature, DOGAMI believes that they owned submerged and submersible lands. OAR apply as well to offshore wells, should develop- chapter 141, division 82. The rules cover the ment occur.) Finally, DOGAMI has authority to monitor and prevent waste of oil and gas. ORS lease application requirements and the actions DSL must take in reviewing and considering a 520.045. lease application. OAR 141-82-015 and 141-82- Once a well-site is established, it would re- 020. The rules also outline the lease terms and quire a number of onshore support facilities rates. OAR 141-82-030 and 141-82-032. DSL (e.g., drilling rigs, pipelines, refineries, and may reject any application for a use which is storage tanks). These facilities may require a contrary to local, state, or federal law, or which number of state permits. First, if the developer would result in an unreasonable interference needs to fill any waters of the state or remove with the public rights of navigation, fishery, and any material from the bed or banks of any recreation. OAR 141-82-025. waters, the facility will require a fill and DSL also has rules relating to statutory and removal permit from DSL. ORS 196.810(l). DSL non-statutory easements and to existing issues permits only if the proposed fill or facilities without an easement that are on, removal will not be inconsistent with the protec- under, or over state-owned submerged and sub- tion, conservation, and best use of water resour- mersible lands. OAR chapter 141, division 83. ces. ORS 196.825(l)-(2). DSL must consider a Easements must include a number of condi- number of factors in determining whether a per- tions, unless DSL determines that a particular mit should be issued, such as the availability of condition is inappropriate. The conditions re- alternatives and whether the proposed fill con- quire: forms to sound conservation policies. ORS 1) public access to navigable waters must be 196.825(3). Furthermore, DSL may issue per- maintained and/or restored upon completion mits for a "substantial" fill in an estuary for a of construction or maintenance of the nonwater dependent use only if the fill is for a facility for which the easement is granted; public use and would satisfy a public need that outweighs harm to navigation, the fisheries, 2) any effluent discharged from any pipeline and recreation. ORS 196.825(4). Finally, DSL or outfall must comply with applicable may condition the fill or removal permit. ORS water quality standards; and 196.825(5). 3) any fill or removal activity requires a fill DSL has adopted rules governing the ad- or removal permit. OAR 141-83-360. ministration, enforcement, and control of fill In addition to a lease for oil and gas develop- and removal permits. OAR chapter 141, division ment pursuant to ORS 274, ORS 520.025(l) re- 85. The rules detail the application require- quires a permit from DOGAMI prior to drilling ments, the renewal process, and the application or using any oil or gas well. A permit is required review process. OAR 141-85-025 to 141-85-035. for drilling, redrilling, deepening, or reworking The rules also set out specific factors that DSL any well. OAR 632-10-010. ORS 520.055 and must consider prior to issuing a fill or removal OAR chapter 632, division 10 require DOGAMI permit. OAR 141-85-045 and 141-85-050. Final- to oversee drilling practices and insure that ly, the DSL rules set out a policy relating to es- 34 9 Executive Summary tuarine mitigation, which is required as a condi- damage or personal injury and may require the tion of any permit to fill or remove material permittee to change the pipeline's location or in- from any intertidal or tidal marsh area of any stallation if a change in the physical charac- estuary. ORS 196.830; OAR 141-85-240 to 141- teristics of the state recreation area, ocean 85-248. shore or submerged lands renders the pipeline Onshore support facilities may also require hazardous or detrimental to the preservation of an easement from DSL. See discussion supra; the ocean shore's economic, scenic, and recrea- ORS 274.710(3)(a); OAR chapter 141, division tional value. 83. Oil and gas pipelines that are at least six in- All state permits must comply with Goal 19 ches in diameter and five or more miles in under ORS 197.250. Each responsible agency length are defined as an energy facility under must review applications for consistency with ORS 469.300(l)(e)(A) and require a site certifi- Goal 19 and any applicable rules. DLCD has not cate from the EFSC. ORS 469.320(l). EFSC has yet promulgated rules under Goal 19. not adopted rules relating to six-inch oil and gas Necessary pipelines. EFSC has adopted rules relating to natural gas pipelines that are greater than six- Implementation Actions teen inches, OAR chapter 345, division 125, but With regard to state territorial waters, the those rules do not apply to pipelines used to Plan's majority recommendation to prohibit oil transport oil. OAR 345-125-025(6). and gas exploration and development would re- Pipelines, cable lines, and other conduits quire a substantial change in the current legisla- across and under the ocean shore and the sub- tive and administrative scheme. Simply put, the merged lands adjacent to the ocean shore also moratorium established under 1989 Or Laws, require a permit from P&RD. ORS 390.715(l). ch 895 would need to be made permanent. The Permits are subject to conditions that insure following statutes also would need to be the safety of the public and the preservation of repealed: ORS 274.710 (DSL's statutory economic, scenic and recreational values. ORS authority to dispose of and use leases for oil and 390.715(3). The P&RD rules relating to pipeline gas under state tidal lands); ORS 273.551 (al- placement require the agency to consider: lowing leasing of submerged and submersible 1) the public need for healthful, safe, aes- lands lying more than ten miles east of the thetic conditions; the natural resources of 124th West Meridian); OAR chapter 141, the area, and the need for conservation and division 82 (relating to leasing state-owned sub- development of those resources; merged and submersible lands); and ORS 520.025(l) (requiring a DOGAMI permit prior 2) the physical characteristics and to drilling or using an oil or gas well). See prior suitability of the area; discussion for a more thorough analysis of these 3) the land uses and improvements in the statutes. area; and Under the Plan's minority recommendation, 4) the need for recreation and access. OAR the above-listed statutes would need modifica- 736-20-040(3). tion rather than repeal. ORS 274.710 should be Prior to issuing a permit, P&RD must circu- modified to allow DSL to dispose of oil and gas late the application to ODFW, DOGAMI, the under state lands only if consistent with the Health Division, DSL, and other appropriate Plan and the Territorial Sea Plan. In addition, state agencies for comments and recommenda- the statute should be amended to require DSL tions. OAR 736-020-040(4). P&RD may require to seek approval from OPAC prior to issuing a liability insurance for potential property lease or offering lands for lease bidding. (Alter- natively, DSL might be required to make a Executive Summary * 35 specific finding that the proposed lease or lease ding is consistent with the two plans. The fill bidding is consistent with the Plan and the Ter- and removal laws, ORS 196.800-.905, would ritorial Sea Plan.) also need amendment to require consistency Under the minority recommendation, ORS with the plans or OPAC approval. ORS 273.551 should be amended to allow leasing or 520.025(l) would not need amendment under lease bidding only if consistent with the Plan the minority's proposal. and the Territorial Sea Plan. Similarly, OAR The Plan does not address sulphur in the oil chapter 141, division 82 would need amendment and gas section. Therefore, under the current to require either OPAC approval or a DSL deter- statutory scheme, DSL could dispose of sulphur mination that the proposed lease or lease bid- under state tidal lands. ORS 274.710(2). G. 0H Spills Summary of the Plan Specific responsibilities among agencies are The Plan recommends that every effort be assigned as follows. First the Plan recommends made to prevent and plan for a coastal oil spill. that DEQ work with other states, state and To accomplish this, the Plan recommends that federal agencies, industry representatives and Oregon: Oregonians to: 1) develop and update existing 1) emphasize spill prevention strategies; spill contingency plans; 2) ensure that oil spill contingency plans identify spill prevention 2) commit sufficient resources to maintain strategies; 3) identify specific spill response ac- ongoing spill response activities; tions (e.g., wildlife rehabilitation centers, volun- 3) promote industry efforts to insure that teer management, and oily debris disposal); 4) equipment and trained personnel will be im- develop a policy for the use of dispersants and mediately available in the event of a spill; other oil reactive agents; 5) develop a com- 4) ensure that any party engaging in prehensive damage assessment strategy; and 6) petroleum exploration, production, storage, seek continued funding and industry commit- ment to develop and maintain response or transport in or near Oregon waters capabilities. develops and acquires approval for oil spill contingency plans; The Plan also requires OPAC to incorporate 5) coordinate with other coastal states to en- major elements of the coastal oil spill preven- courage Congress to amend federal laws to tion and response plan into the Territorial Sea remove limitations on spill liability and to Plan. With the assistance of the Oregon Attor- ney General, OPAC is also required to inves- designate the U.S. Coast Guard as the sole tigate the need, feasibility, and legality of federal agency responsible for reviewing in- requiring bonding to engage in offshore oil and dustry spill prevention and response plans; gas exploration and development. Finally, the and Plan recommends that the Territorial Sea Plan 6) include Oregon's coastal oil spill preven- include policies and standards for oil spill con- tion and response plan in the Territorial tingency plan requirements, the use of disper- Sea Plan. sants, liability limits, damage assessment, and 36 9 Executive Summary compensation. which may be used to carry out cleanup ac- Current Jurisdiction tivities and to rehabilitate fish and wildlife. ORS 468.819. The state also requires financial and Administration assurance for ships that transport oil and other In 1989, the Oregon Legislature enacted hazardous material in the waters of the state. two bills concerning oil spills along the Oregon ORS 468.823-.829. coast. Under the current statutory framework, DEQ is responsible for developing an oil it is unlawful for oil to enter the waters of the spill response plan for spills in the Columbia state from a ship, a fixed or mobile facility, or and Willamette Rivers and the coastal waters any offshore or onshore installation. ORS and estuaries of the state. ORS 468.831. Annex 468.785(l). Any ship over 300 gross tons that 0 of the Oregon Emergency Operations Plan transports oil in bulk as cargo and uses any port and the spill response contingency plans for or place in Oregon waters must provide finan- Oregon's three deep draft development es- cial assurance for any spill costs, penalties, and tuaries (Columbia River, Yaquina Bay, and damages. ORS 468.825. Any person owning or Coos Bay) constitute the current response plan. controlling oil that spills into waters of the state In addition, Oregon is a member of the EPA!s is responsible for its immediate removal or, al- Regional Response Team for Region 10. The ternatively, for any costs incurred by DEQ in Team coordinates the spill response activities of removing the spill. ORS 468.795. DEQ has thirteen federal agencies. promulgated rules governing the reportable Goal 19 of the Oregon land use planning quantities, cleanup standards, and required ac- goals provides that oil spillage regulation by tions for oil spills. OAR 346-108-001 to 340-108- DEQ is of special concern. Goal 19 requires 080. Any person owning or controlling oil that DEQ and other agencies to provide that the dis- spills into the waters of the state is also strictly charge of wastes (e.g., oil) does not substantially interfere with or detract from the use of the con- liable for any damage caused by the spill unless tinental shelffor fishing, navigation, recreation, 1) the person has a permit for discharging aesthetic purposes, or the long-term protection oil from DEQ, or of renewable resources. Goal 19 also calls for 2) the person can prove that the spill was the establishment of contingency plans and caused by an act of God, by the negligence emergency procedures in the event of a spill of the federal government, or by an act or that threatens to damage the environment. omission of a third party. ORS 468.790. The LCDC has not yet promulgated rules under statutes governing water pollution also im- Goal 19. pose strict liability on anyone responsible Necessaty for damage to fish, wildlife, or its habitat Implementation Actions due to water pollution from an oil spill. ORS The Plan's recommendation that any party 468.745. Both DEQ and ODFW have engaging in petroleum exploration, production, authority to bring actions to recover storage or transportation develop an oil spill damages for fish and wildlife. contingency plan would require new legislation, In addition to liability for damages caused because no statutory authority currently exists by an oil spill, any person who wilfully or for DEQ to require such plans. Such legislation negligently causes or permits the discharge of should: oil can be assessed an additional civil penalty 1) require all parties engaging in explora- by DEQ. ORS 468.817. These penalties are tion, production, storage, or transportation deposited into an Oil Spillage Control Fund, Executive Summary * 37 to submit a contingency plan to DEQ; response strategies. ORS 468.831-.832. This 2) establish standard elements for an ade- plan could easily include the response actions quate contingency plan or confer authority and dispersant policy recommended by the on DEQ to establish the elements of an ade- Plan. Thus, no new legislative authority is quate plan; and needed. The Plan also requires DEQ to develop 3) require each party to receive DEQ ap- an assessment strategy. Since both DEQ and proval prior to engaging in these activities. ODFW have authority to bring actions to If such legislation is enacted, DEQ would recover damages for fish and wildlife pursuant need to adopt rules by which to evaluate con- to ORS 468.745, both agencies should be in- tingency plans. volved in the development of the assessment strategy and rules. The Plan recommends several other tasks The remaining Plan recommendations, that for DEQ, most of which DEQ is already required DEQ seek continued funding and industry com- to undertake. Under current legislative mitment to develop and maintain response authority, DEQ is required to develop an in- capabilities, require no legislative or administra- tegrated, interagency response plan for state tive rule changes. coastal waters and estuaries that includes H. Marine Minerals Summary of the Plan Moreover, research activities should only be al- The Plan recommends that the Territorial lowed if they will not adversely affect sensitive Sea Plan and the process of preparing that Plan marine bird or mammal populations or habitats, be used as an opportunity to clarify state as determined by ODFW. policies and programs on marine minerals. The The Plan also recommends that DSL take Plan provides that the Territorial Sea Plan steps to implement a five-year moratorium on should include a research program, policies and exploration contracts currently authorized by criteria for administrativerules to guide any ORS 274.611-.640, and that if DSL adopts rules commercial exploration. The Plan identifies two to carry out ORS 274.611-.640, DSL should pro- areas that should be off limits to commercial vide for a Project Review Panel, with ODFW as mineral exploration and development: "Impor- the lead agency, to review and approve an inven- tant Fishery Areas" so designated in the Ter- tory and environmental effects assessment ritorial Sea Plan and areas within three miles of under Goal 19. In addition, the Plan recom- sensitive offshore rocks and islands. mends amendment of ORS 274.611-.640 to Until these "Important Fishery Areas" are clarify that an exploration contract does not con- designated in the Territorial Sea Plan, the fer proprietary rights to minerals found and Plan's majority recommendation is that all ex- does not obligate the state to proceed with any ploration and development within three miles of steps toward mineral leasing and development. all nearshore rocks and islands, except for The Plan recommends that LCDC adopt academic and public agency scientific research rules under Goal 19 that require an inventory related to marine minerals, be prohibited. and effects assessment prior to any commercial 38 * Executive Summary exploration contracts. The Plan would also re- boards, and commissions. However, the current quire that a proposed exploration plan, if ap- statutory scheme does not require consultation proved by appropriate state and federal on individual contracts. Instead, DSL must con- agencies, contain necessary terms, conditions, sult on the "form" provisions it establishes by and stipulations to avoid significant adverse im- administrative rule. To date, DSL has not pacts from exploration activities. adopted any rules governing exploration con- Finally, the Plan calls on the Governor to tracts for hard minerals on submerged and sub- work for legislation requiring coordination with mersible lands. state ocean resources programs prior to commit- Leases for marine mineral development are ting public resources to private development. also under the jurisdiction of DSL. In order to The Minority recommendation, in contrast, execute a lease or contract, DSL must consult is that: with DOGAMI and get concurrence from "any 1) DSL, in cooperation with DOGAMI and state agency acting for the state with respect to ODFW, should develop a comprehensive re- surface rights in the subject land." ORS search plan designed to determine the costs 273.551(l). However, DSL cannot enter leases and benefits of marine mining; and for development of marine minerals until the Territorial Sea Management Plan is developed 2) Oregon should postpone a proposed and approved by the State Land Board. ORS minerals research program scheduled for 274.640(7)(c). Currently no explicit permit the summer of 1990 until a comprehensive process exists for consideration of the environ- research program is adopted. mental and reclamation aspects of offshore mini- Current Jurisdiction ng. andAdministration Necessary DSL has jurisdiction over exploration per- Implementation Actions mits and leases for all mineral and geothermal The Plan recommends that DSL take action resources owned by the state. ORS 273.780. to "make clear" that ORS 274.611-.640 will not Under ORS 274.611-.640, DSL has explicit be implemented for at least five years, and es- authority to enter into "contracts for exploration sentially calls on DSL to institute a five-year of hard minerals on state-owned submersible moratorium on marine mineral exploration. and submerged lands within the territorial sea DSL arguably may have authority to implement and navigable bays that are subject to the juris- this recommendation under ORS 273.780, diction of the division." ORS 274.615. "Hard which provides that state-owned mineral and minerals" include natural deposits of minerals geothermal resource rights "shall be subject to such as gold, silver, copper, lead, iron, man- exploration permit or lease by the Division of ganese, silica, chrome, platinum, tungsten and State Lands, in accordance with rules and condi- zirconium, but not oil, gas, or sulphur. ORS tions established by law or adopted by the 274.611. division." However, the "shall be subject to ex- Exploration contracts are required to con- ploration permit or lease" language is troubling tain provisions necessary to protect the inter- because it implies that mineral resources are ests of the state and to prevent adverse effects available by law. DSL may condition the ex- on people, nearby residential or recreation ploration permits or leases, but this statutory areas, aesthetic and scenic values, and marine provision does not seem to give DSL the life. ORS 274.635(l). In developing contract authority to place a moratorium on exploration provisions, DSL is to consult with DOGAMI, permits and leases. Thus, legislative clarifica- ODFW, DLCD, and other interested agencies, tion would be helpful. Executive Summary 0 39 Under ORS 274.611-.640, however, DSL has ventory and environmental effects assessment, considerable discretion in allowing marine which would be required under Goal 19. See dis- mineral exploration. DSL "may" enter into con- cussion on DLCD infra. Under the current tracts for exploration of hard minerals on state- statutory scheme, DSL is not required to con- owned submerged and submersible lands. ORS sult with other agencies such as ODFW prior to 274.615. This section allows DSL to deny any issuing a marine mineral exploration contract, and all marine mineral exploration contracts. In but nothing prevents the agency from adopting addition, "[w1henever it appears advisable to this approach by administrative rule. the division to offer submersible and submerged The Plan recommends amendment of OAR lands for exploration contracts," DSL shall give 274.611-.640 to clarify that an exploration con- public notice and invite public bids on the tract does not confer proprietary rights to proposed contract. ORS 274.620. This section minerals found and does not obligate the state implies that DSL may find it inadvisable to to proceed with any steps toward mineral leas- offer submersible and submerged lands for ex- ing and development. ORS 273.780(3) provides ploration contracts. Thus, DSL may choose not that state-owned mineral and geothermal to offer any lands for public bid, thereby impos- resource rights "shall be retained by the state in ing a moratorium. the absence of a finding by the State Land Nevertheless, any person may request in Board upon adequate facts presented to it that writing that DSL make lands available for ex- their sale or exchange is for the purpose of ob- ploration. Id. Once a request is made, DSL must taining the greatest benefit for the people of this give written notice and hold a public hearing, state, consistent with the conservation of lands after which the division determines whetheTan under its jurisdiction under sound techniques of invitation for contract bidding would be in the land management." This section seems to ad- public interest. In making its determination, dress the Plan's concern - the presumption DSL must consider whether the proposal is con- under this section is that the state retains all sistent with the statewide planning goals and property interest in marine minerals unless the the potential impacts on the surrounding area, State Land Board explicitly decides otherwise. ORS 274.625. However, ORS 274.640(7) provides that an Public requests to make lands available for exploration contractor may request a lease from marine mineral exploration and the subsequent DSL and that the contractor has a preference public hearings may hinder DSL's ability to right to negotiate a development lease, provided place a moratorium on marine mineral explora- that the development is consistent with the Ter- tion. DSL may be forced to justify its ritorial Sea Plan. This section may imply that moratorium decision in several public hearings, an exploration contract confers a right to obtain depending on the number of public requests the a development lease as long as development is division receives. A more effective and efficient consistent with the Territorial Sea Plan. Subsec- means of placing a moratorium on marine tion (6), which allows the contractor and DSL to mineral exploration contracts therefore would agree to subsequent terms in any development be through a legislatively imposed moratorium, lease entered into under subsection (7), reinfor- eliminating the possibility of public requests to ces the implication. ORS 274.640(6). At a mini- make lands available. mum, therefore, these two subsections need The Plan also calls on DSL to provide for revision and clarification. Project Review Panels (PRPs) should it adopt The Plan recommends that LCDC adopt ad- administrative rules to carry out ORS 274.611- ministrative rules under Goal 19 that require .640. The PRPs would review and approve an in- an inventory and effects assessment prior to 40 * Executive Summary DSL granting any commercial exploration con- necessary to understand the impacts of the tracts. Goal 19 requires local governments and proposed activity. LCDC has not yet adopted state and federal agencies that implement plans Goal 19 rules, but rules that require an inven- or carry out projects or activities affecting ocean tory and effects assessment would be consistent resources to develop inventory information with Goal 19. Executive Summary 41 N. TwIs for Governing A. Territorial Sea Plan 1987 Or Laws ch 576, section 15 requires cultivating and harvesting marine plants and the State Land Board to adopt a management animals, artificial reefs, recreation and cultural plan for the resources and uses of the sub- resources, dredged material disposal, and merged and submersible lands of the state ter- marine minerals. The Plan also recommends ritorial sea (the Territorial Sea Plan). The that the legislature extend the preparation time Territorial Sea Plan is required to be consistent for the Territorial Sea Plan and provide budget with the purposes of the Oregon Ocean support for the plan process. Resource Management Act, ORS 196.405-.505, To implement the recommendations for the and the policies and recommendations of the Territorial Sea Plan, the Oregon legislature will Plan. The State Land Board must adopt the Ter- need to amend 1987 Or Laws ch 576, section 15. ritorial Sea Plan by July 1, 1991. The amendment should specify the issues to be However, the Plan recommends that the addressed in the Territorial Sea Plan, expand scope of the Territorial Sea Plan be expanded, the preparation time, and require the State to cover marine bird and mammal habitat Land Board to coordinate with OPAC in prepar- areas, Intertidal Marine Gardens, marine air ing the plan. and water quality, oil spill responses, leases for 42 * Executive Summary B. The Ocean Policy Advisory Council (OPAC) 1987 Or Laws ch 576 required that the Plan Review Panels; and include recommendations for a permanent 6) encourage federal agency participation. ocean resources planning and management The Plan recommends that OPAC be com- process. Specifically, the Task Force was to con- posed of. the Governor (or his designee), three sider options for an advisory coordinating body, 11 at large" representatives, a conservation or en- advisory committees, and a process for updating vironmental organization representative, a coas- and amending the Plan. ORS 196.495(7). In tal county commissioner, the director of the responding to that task, the Plan recommends Oregon Coastal Zone Management Association, that the Oregon legislature establish a "broadly representative policy advisory council," known a tribal representative, a representative from as OPAC, to be coordinated by DLCD. The Plan each of five ocean user groups, and the directors recommends that OPAC: of interested state agencies (DEQ, ODFW, DOGAMI, DSL, P&RD, DLCD, and the Depart- 1) coordinate preparation of the Territorial ment of Agriculture). Sea Plan; Legislation is required in order to establish 2) provide a permanent forum for discussing OPAC. Such legislation should specify OPAC's 7 ocean resource policy, planning and manage- duties in implementing the Plan and developing ment issues; and implementing the Territorial Sea Plan. The 3) recommend improvements to the Plan legislation should also specify issues OPAC and the Territorial Sea Plan as needed; should address, particularly those identified in 4) offer advice to the Governor, State Land the Plan itself (e.g., Intertidal Marine Gardens, Board, state agencies, and local govern- ocean fisheries, marine birds and mammals, ments on specific ocean resource manage- and oil spills), and outline the powers of OPAC ment issues; (e.g., authority to establish Project Review 5) coordinate interagency and inter- Panels). Finally, OPAC should be given governmental review of specific ocean authority to adopt administrative rules neces- resource projects or actions through Project sary to implement its duties. C. Proiect Review Panels (PRPs) Under the current statutory and regulatory establish Project Review Panels (PRPs). These scheme for ocean resources, several agencies panels would not have any independent have responsibility for reviewing proposals to authority, but would act as an advisory body to use different resources. See Part II. Coordina- -the agencies responsible for reviewing a par- tion between the agencies varies, depending on ticular proposal. If an agency elected not to ac- the resource. To improve coordination, the Plan cept the recommendation of a PRP, the Plan recommends that OPAC be given authority to recommends that the agency be required to pro- Executive Summary * 43 vide OPAC with written findings and con- tablishment of PRPs and give OPAC authority clusions to support its position. to appoint the panels. In addition, legislation is PRPs would be established at the request of necessary to require state agencies to either a state agency or local government, or on the adopt PRP recommendations or provide written recommendation of OPAC; however, the Plan findings that justify their rejection of the recom- recommends that PRPs not be used when the ac- mendations. Once OPAC is established, it will tion under consideration is included in a need to adopt regulations concerning the fisheries management plan. criteria for appointing PRPs. Legislation is necessary to authorize the es- D. Coastal Local Govemments Under ORS 197.175, cities and counties are ture offshore development of oil, gas, or responsible for preparing comprehensive plans minerals. in compliance with the nineteen statewide land To implement these recommendations, any use planning goals established by LCDC. Once legislation creating OPAC and PRPs will need LCDC has acknowledged a comprehensive plan, to require local government representation. In the local government is responsible for im- addition, new legislation is required to give local plementing its plan through the enactmentof governments a share of revenues derived from land use ordinances. Prior to LCDC acknow- oil, gas, or marine mineral exploration or ledgement of their comprehensive plans, local development. (Under current law, the proceeds governments are to make land use decisions in from state-owned mineral and geothermal compliance with the nineteen goals. Thus, local resource rights accrue to the Common School governments have an important role in im- Fund unless other disposition is required by plementing the statewide land use planning federal law. ORS 273.780-.785. The Oregon Con- goals. stitution also dedicates the proceeds from any The Plan recommends that local govern- tax or excise levied on the extraction, produc- ments be represented on OPAC and PRPs as ap- tion, storage, use, sale, distribution, receipt, or propriate. Local governments will need to ownership of oil and natural gas to the Common review their comprehensive plans for consisten- School Fund. Or. Const. art. VIII, section cy with Goal 19 (Ocean Resources) and any 2(1)(g). If a royalty payment is an excise on oil rules promulgated by LCDC. Furthermore, the or gas production, the Plan's recommendation to Plan calls for legislation providing local govern- distribute royalties to local governments may re- ments and Indian tribes, where appropriate, quire a constitutional amendment rather than a with a share of revenues derived from any fu- legislative amendment.) Executive Summary 9 45 /V Indian kwes Indian tribes have a unique interest in from four sources: ocean uses and resources off the Oregon coasts. 1) aboriginal title; However, the issues of which tribes may have 2) a treaty; rights and what those rights are has not been clearly defined, and are beyond the scope of this 3) a federal statute; or paper. The Oregon coastal tribes of which we 4) executive order. are aware include the Confederated Tribes of To have a treaty-based or executive order Coos, Lower Umpqua and Siuslaw Indians, the based right, a tribe must have a ratified treaty Confederated Tribes of Siletz, and the Coquille or executive order with the United States that Tribe. Their range of interests can be briefly recognizes the particular right. (The right need summarized as follows: not be express in the treaty because treaties are 1) a tribe in close proximity to the coast may interpreted as the tribes would have understood have an interest in decisions affecting the them. Thus, a right may be implied from the Oregon coast because of land ownership or a treaty.) However, the Oregon coastal tribes of tribal right to ocean resources; which we are aware do not have ratified 2) a tribe with only an interest in resources treaties. See Coos Bay, Lower Umpqua, and from the ocean (e.g., anadromous fish, oil Siuslaw Indian Tribes v. United States, 87 Ct. and gas royalties, tourism, or archaeological Cls. 143 (1938). resources) may have a potential interest in To establish aboriginal title, Indian tribes the decisions affecting ocean resource must prove actual, continuous, and exclusive management; possession of the land. If several tribes common- 3) other tribes with salmon fishing rights ly traveled on the land, none of the individual along Oregon rivers other than the Colum- tribes will have aboriginal title. In the Coos Bay bia River may also have an interest in ocean case, for instance, the Confederated Tribes of resource management. Coos, Lower Umpqua and Siuslaw Indians were Once the potentially affected tribes are iden- not able to prove aboriginal title to their lands tified, the next step is to ascertain what, if any, because of their "intimate contacts" with other rights a tribes may have. Tribal rights can stem tribes. Id. at 153. Since those Tribes were not 46 * Executive Summary able to establish aboriginal title to their lands, congressional action. The statutes recognizing it is unlikely that they could establish an the Oregon coastal tribes, however, do not affect aboriginal right to hunting and fishing rights be- the tribeshunting and fishing rights. See, eg., cause the burden of proof for an aboriginal right 25 U.S.C. 714 (Confederated Tribes of Coos, is the same as for an aboriginal title to land. Lower Umpqua and Siuslaw). Thus, federal The aboriginal rights of the other coastal tribes statutes will probably not be a source of tribal may be subject to a similar limitation. claims with respect to the Oregon coast. A more A final potential source of tribal rights is by thorough analysis of these issues is needed. DAVE FROHNMAYER JAMES E. MOUNTAIN, JR. ATTORNEY GENERAL DEPUTY ATTORNEY GENERAL DEPARTMENT OF JUSTICE PORTLAND OFFICE 1515 SW 5th Avenue Suite 410 Portland, OR 97201 Telephone: (503) 229-5725 FAX: (503) 229-5120 MEMORANDUM DATE: October 18, 1990 TO: Susan Brody, Director Eldon HOUt Program Manager Ocean Resources Program Department of Land Conservation and Development FROM: Cheryl Coodley Assistant Attorney General SUBJECT: Obligation of state Agencies to Implement the Oregon Ocean Resources Management Plan INTRODUCTION You have asked for an analysis of the impact of the Oregon Ocean Resources Management Plan ("the Plan") on state agencies, specifically in terms of their obligation to implement the Plan. As you know, the Oregon Ocean Resources Management Act ("the Act") did not change any statutorily or constitutionally mandated responsibility of any state agency. ORS 196.435(3). Thus the questions become (1) to the extent that an agency can act consistently with the Plan without running afoul if-its other statutorily or constitutionally mandated responsibilities, is an agency obligated to do so? (2) If the answer is in the affirmative, does "acting consistently" mean that an agency must affirmatively implement all of the recommendations of the Plan, or only that it must not, through existing programs, act inconsistently? Susan Brody, Director Eldon Hout October 18, 1990 Page Two SHORT ANSWER Based on the language of the Oregon Ocean Resources Management Act, as well as ORS 197.180, to the extent that agencies can constitutionally and statutorily act consistently with the Plan, they are obligated to do so. However, this does not mean that agencies are obligated to elevate Plan recommendations.over other statutory priorities, and an agency need not implement new programs recommended by the Plan. DISCUSSION The legislature clearly intended that the State of Oregon develop a program of ocean resources management to promote and insure coordinated management of living and non-living marine resources. See ORS 196.415(7). To accomplish that goal, the Act established a coordinated program of ocean resource planning and management, known as the Oregon Ocean Resources Management Program (Program). The Program includes: 1) The existing Oregon Coastal management program, approved by the U.S. Secretary of Commerce on July 7, 1977; 2) Statutes, programs and policies of state agencies which apply to coastal zone resources; those elements of acknowledged local plans which may be affected; planning goals which relate to conservation and development of ocean and coastal resources and the planning and management of land use activities which may be affected; 3) The Plan; and 4) State agency coordination requirements. The Act sets out a series of specific expectations for the Plan, including: 1) It shall be compatible with acknowledged comprehensive plans of adjacent coastal counties. See, ORS 196.465(l); Susan Brody, Director Eldon Hout October 18, 1990 Page Three 2) It shall be reviewed and adopted by LCDC, based on findings that the Plan carries out the policies of the Act, is consistent with applicable statewide planning goals, and is compatible with adjacent county local comprehensive plans. See, Sections 14, 15, ch. 576, or. Laws 1987; 3) It shall become a part of state agency programst either through incorporation by reference in a state agency coordination program or, if an agency chooses not to incorporate the Plan, through goal findings. See, ORS 196.485. As noted above, the Act offers state agencies two options for implementing the Plan into their programs and rules. See, ORS 196.485. An agency may implement the Plan through its SAC program and use the SAC process to do so. ORS 196.485(l). Alternatively, an agency may choose not to incorporate the Plan into its SAC program, but the Act makes clear that if an agency so chooses, the agency is still subject to ORS 197.180 and the requirement of making goal findings for all of its programs, procedures and standards that in any way affect ocean resources. Moreover, the Act specifically states that state agency programs or rules for management of ocean resource or ocean uses shall be consistent with the Plan. ORS 196.485(2). Thus, two separate provisions in the Act strongly suggest that state agencies are obligated to act in a manner consistent with the Plan. First, the Act itself contains ample legislative findings to suggest that coordinated agency management and programs were the very goal of the Act. Second, state agency coordination requirements, both through ORS 197.180 and in ORS 196.485 obligate agencies to act consistent with all statewide planning goalsl and with the Plan. 1 of course, the state agency coordination referenced in ORS 196.485 is merely a restatement of the state agency coordination required by ORS 197.180. State agencies are obliged to comply with statewide planning goals. ORS 197.180. See, Audubon v. Department of Fish and Wildlife, 67 Or App 776 T1-984). LCDC has adopted rules which set forth how state agencies are to fulfill that obligation. OAR 660, divisions 30, 31. What the rules and statutes make clear is that because state agencies are statutorily obliged to comply with statewide planning goals, they are obliged to amend state agency programs or rules in order to be consistent with the goals. Susan Brody, Director Eldon Hout October 18, 1990 Page Four Assuming then that agencies are obligated to act consistently with the Plan, what does this mean? Certainly it means that agencies may nott through existing programs and rules, act inconsistent with the Plan (once it is approved by LCDC). See, ORS 196.485(2). moreover, ORS 196.485(2) specifi6-a-lly directs that agency programs or rules for the management of ocean resources or uses shall be consistent with the Plan, suggesting that existing programs and rules should be amended, if necessary, to achieve consistency.2 But agencies need not use limited budgets and staffing to carry out new programs recommended in the Plan. No language in the Act indicates that it was intended to elevate priorities identified in the Plan over other statutorily or constitutionally mandated responsibilities. See, ORS 194.435(3). Indeed, ORS 194.435(3) can be rei-d-to the contrary. If the legislature decides to elevate Plan recommendations t-o priorities for agencies, this can be accomplished through enhanced agency budgets or new legislation. 2 Such a directive, of course, does not alter the plain intent of the Act that no statutory or constitutional responsibility of an agency shall be affected by the Act. ORS 194.435(3). #4175H/aa Executive Summa!2 o 3 6668 00004 3853