[From the U.S. Government Printing Office, www.gpo.gov]

















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  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
I
I
                                                Recommendcffons
                                                  forAgencyAcfion






                                                                                       Executive Summary 9 7


                                                    Ocean Fisheries
                                                        (Plan pp. 59-80)
               Agency         Recommendation                        Necessary Implementation Actions

              OFWCIODFW '
                   ï¿½   Adopt marine habitat classification          Statutory authority is sufficient. OFWC should
                       system.                                      adopt rules establishing:
                   ï¿½   Identify Important Fishery Areas.                  1. Marine habitat classification system;
                   ï¿½   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
                   ï¿½   Conduct and support research on im-                   projects.
                       portant fishery areas.
                   ï¿½   Coordinate development of public
                       education and interpretive programs.
               DSL
                   ï¿½   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:
                       ï¿½    Conduct and support scientific re-               Statutory authority is sufficient. OFWC should
                            search.                                          adopt rules establishing:
                       ï¿½    Identify key habitats.                                 1.  Program for protection of marine birds
                       ï¿½    Establish criteria for designation and                     and mammals.
                            protection of sensitive populations.                   2.  Protection criteria.
                       ï¿½    Examine resource protection needs of                   3.  Policy and/or procedure by which to
                            specific sites                                             identify key habitats.
                       ï¿½    Develop site-specific measures to                      4.  Criteria for reviewing uses and ac-
                            protect sensitive populations.                             tivities.
                       ï¿½    Examine potential for state wildlife
                            management refuges.
                       ï¿½    Review specific uses or activities for
                            their effect on sensitive populations.

                  DSL
                       Interim:
                       ï¿½    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-
                       ï¿½    Prohibit all other activities within 1/4         cy research regarding nonrenewable resources.
                            mile of 33 identified sensitive areas.
                       ï¿½    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
                     ï¿½   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.
                     ï¿½   Work with OPAC, DSL and ODFW to
                         explore better management ap-
                         proaches for intertidal areas.
               DSL
                     ï¿½   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
                     ï¿½   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
                     ï¿½    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).
                     ï¿½    In consultation with DSL and local
                          governments, identify specific sites for
                          marine parks that will be included in
                          the Territorial Sea Plan.

                     ï¿½    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
                     ï¿½    Preserve major segments of Highway            Statutory authority is sufficient (via statewide
                          101 as significant recreational, aes-         land use planning goals).
                          thetic and historic resources.
                     ï¿½    Incorporate ocean views, shoreline
                          recreation and education into plans
                          for improving Highway 101.
                Local Governments
                     ï¿½    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.
                     ï¿½ 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
                     ï¿½   Provide technical assistance.               Statutory authority is sufficient. ODFW might
                     ï¿½   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
                      ï¿½   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.

                      ï¿½ 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
                      ï¿½   Cancel Lease Sale #132.
                      ï¿½   Oppose any federal lease sale unless
                          certain conditions met.
                      ï¿½   Participate in Pacific Northwest OCS
                          Task Force.






                                                                                            Executive Summary - 13


                                                               oil spills
                                                           (Plan pp. 141-147)
                 Agency          Recommendation                          Necessary Implementation Actions

                 DEO
                      ï¿½   Develop and update existing state              New legislation to require any party engaging
                          spill contingency plans.                       in petroleum exploration, production, storage
                      ï¿½   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-
                      ï¿½   Identify specific state spill response         ard elements for an adequate contingency plan.
                          actions.                                       Statutory authority for state contingency plans
                      ï¿½   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
                      ï¿½   Develop comprehensive damage as-               strategy, after consultation with ODFW.
                          sessment strategy.
                      ï¿½   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.

                     ï¿½   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.
                     ï¿½   Provide for PRP review and approval           Adopt rule so requiring.
                         of an inventory and environmental ef-
                         fects assessment of exploration con-
                         tracts.

               DSL
                     ï¿½   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
                     ï¿½   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.
                     ï¿½   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.
                     ï¿½    Artificial reefs.

                     ï¿½    Recreation and cultural resources.
                     ï¿½    Dredged material disposal.
                     ï¿½    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

                     ï¿½    Coordinate preparation of Territorial          Legislation establishing OPAC, specifying
                          Sea Plan.                                      duties in implementing and developing Ocean
                     ï¿½    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.
                     ï¿½    Recommend improvements to Ocean
                          Resources Plan and Territorial Sea
                          Plan.
                     ï¿½    Offer advice to Governor, State Land
                          Board, state agencies and local govern-
                          ments on specific ocean resource
                          management issues.
                     ï¿½    Establish Project Review Panels and
                          recommend when particular proposals
                          should be reviewed.
                     ï¿½    Coordinate interagency and inter-
                          governmental review of resource use
                          through Project Review Panels.
                     ï¿½    Offer advice to Governor, State Land
                          Board, state agencies and local govern-
                          ments on specific ocean resource
                          management issues.
                     ï¿½    Establish Project Review Panels and
                          recommend when particular proposals
                          should be reviewed.
                     ï¿½    Coordinate interagency and inter-
                          governmental review of resource use
                          through Project Review Panels.






                                                              Executive Summary e 17










                                        l/. Ocean Resource Issues



















I






                 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-


                     1   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














































































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