COORDINATED ENFORCEMENT PROGRAM |
SALMON RESTORATION INITIATIVE
OREGON STATE POLICE
Introduction
This chapter of enforcement endorses the original philosophy of fish and wildlife management which is simply enforcement protection of existing fish and wildlife populations. It was recognized early in the planning stages of the Coastal Salmon Restoration Initiative that enforcement of existing laws and regulations was necessary in order to bring accountability to fish and wildlife management implementation. Increased funding of additional enforcement personnel is critically important to ensure compliance of existing laws and regulations is sufficient to allow restoration of Oregon's coastal salmonids.
Overview
The Endangered Species Act (ESA) [1973 16 USC 1531 to 1543] provides for the protection of species of fish, wildlife and plants that are designated as becoming endangered or threatened to become endangered. The act prohibits persons subject to the jurisdiction of the United States from committing specific acts. Under the ESA, the general prohibition states that persons may not take species of fish, wildlife or plants so listed. "Take" is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct within the United States. Further, "taking" includes destruction or significant alteration of habitat on which protected species depend.
Objectives of the ESA are to conserve endangered or threatened species and provide a means to conserve the ecosystem upon which these species depend. (The ultimate goal of the ESA is to make itself obsolete through conservation and by returning species to levels at which protective statutes are no longer needed.) Conservation involves the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which these measures are no longer necessary. [§ 1532(3)]
Further, a species may be listed as endangered or threatened if the species is jeopardized by the present or threatened destruction, modification or curtailment of the species' habitat or range; over-utilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms, or other factors affecting the species' continued existence. [§ 1533(A)(1)] In addition, any efforts by the state or foreign government to protect the species must be considered if a species is to be listed. [§ 1533(D)(1)(A)]
The National Marine Fisheries Service (NMFS) has provided a working guidance document for a comprehensive salmon restoration initiative on the Pacific Coast. Three significant components to this restoration strategy include critical and desirable elements:
The Coastal Salmon Restoration Initiative consists of many elements designed to conserve and restore populations of salmon and trout in Oregon. Elements include actions to conserve "core" populations of salmon; procedures to provide continuing leadership and improve interagency cooperation; adjustments in harvest and hatchery programs; opportunities to improve compliance with existing environmental laws; public education programs and comprehensive monitoring programs.
The Oregon Coastal Salmon Restoration Initiative recognizes that voluntary compliance should be emphasized and efforts made to improve compliance with existing environmental protection laws. The intent is to make the existing system work better, not establish new laws and regulations. It is the position of the State of Oregon that current statutes and administrative rules governing the protection of Oregon's natural resources, when complied with, are sufficient to meet the listing criteria of regulatory mechanism as outlined by NMFS. [§ Draft Oregon Coastal Salmon Restoration Initiative 8/26/96.]
CONCEPT I
Fish and Wildlife Enforcement Division Role in Habitat and Environment Law
The traditional role of the Oregon State Police Fish and Wildlife Enforcement Division is to ensure compliance with both recreational and commercial fish harvest management regulations which had been recognized in the past as the most appropriate method to manage fish and wildlife populations. As fish stocks declined, more restrictive harvest regulations were introduced, and management emphasis began shifting toward maintenance of viable habitat and environmental protection. It is now recognized that habitat and the environment play major roles in preserving and enhancing fish and wildlife populations. The importance and appreciation of environment and ecosystem management has caused and will continue to cause the role of the Fish and Wildlife Enforcement Division to expand.
Law enforcement directed at ensuring compliance with existing habitat and environmental regulations enhances both credibility and accountability of regulatory programs. It can exert a positive influence for obtaining maximum protection and enhancement of fish and wildlife resources. Enforcement presence fosters voluntary compliance which, in turn, creates longevity and ownership. Enforcement is a critical component of regulatory authority. The Fish and Wildlife Enforcement Division is an enforcement component of fish, wildlife, habitat and environmental regulation compliance. As Oregon's demographics become more complex and urban, habitat and environmental issues and concerns will become more complex and important. The consequences and effects resulting from violations of laws will become greater; correspondingly, so will sanctions against those who violate the law. The State Police can bring its investigative expertise and criminal justice resources to bear on such violators. State statutes and administrative rules governing harvest, habitat and environmental law, that carry criminal penalties, must be enforced with due regard to laws of evidence and search and seizure. Facts documented during criminal investigations can also result in compelling evidence for civil and administrative litigation.
Education is recognized as the means to bring understanding and appreciation to Oregon's natural resource laws as well as an understanding of the impact and consequences of regulatory statutes and administrative rules. The Fish and Wildlife Enforcement Division has years of experience and expertise in efforts to educate and outreach to citizens of Oregon. People are more willing to comply with regulations when those regulations are understandable, have validity and merit, and are uniformly enforced. The Division has demonstrated its ability to ensure equitable, fair and uniform enforcement for Oregon's citizens. The Division stands ready to assist natural resource regulatory agencies in educating and enforcing the regulatory and conservation components of the Salmon Restoration Initiative.
Agency Role/Responsibility
Law Enforcement Support for the Coastal Salmon Restoration Initiative
Oregon Department of Agriculture (ODA)
The Oregon Department of Agriculture (ODA) wished to utilize Oregon State Police enforcement to assist in situations where ODA staff have been denied access to private property when conducting investigatory activities or when safety to state agency personnel is a concern (dealing with hostile landowners). Also, ODA may turn to the State Police for support in cases which may result in criminal prosecution. (Refer to memorandum dated February 3, 1997, by Mark Peters, ODA - Natural Resources Division - Appendix A.)
The Oregon State Police offers assistance to ODA which would include:
[Example: The Fish and Wildlife Enforcement Division's Tenmile Lake watershed involvement
with the Department of Environmental Quality (water quality limited issues and non-point
pollution of Tenmile Lakes watershed).]
Oregon Division of State Lands (DSL)
The Division of State Lands (DSL) does not have a formal monitoring program for removal-fill permits, although some permits contain specific monitoring requirements. Projects including wetland creation, restoration or enhancement as compensatory mitigation must have a site-specific monitoring plan. Monitoring of removal-fill projects may be conducted by the Oregon Department of Fish and Wildlife (ODFW), Oregon Water Resources Department (OWRD), SWCD, NRCS personnel and others. Enforcement of removal-fill is generally based upon complaints received from the public or state agency personnel.
DSL has three Coastal Salmon Restoration Initiative program measures that will improve their monitoring and enforcement capability:
(Refer to memorandum dated February 3, 1997, by Jenifer Robison, DSL - Appendix B.)
The Oregon State Police proposes to partner with DSL to assist with inventory and assessment for permit and permit condition compliance for water diversion in "core" habitat areas. Other functions include but are not limited to:
[Example: Coordinated agency action plan with DSL/OSP in the Applegate River drainage and Illinois Valley River Basin on push-up dams.]
Oregon Water Resources Department (OWRD)
The Oregon Water Resources Department's water quantity issue team identified three factors of decline regarding water quantity: inadequate flow, inadequate fish passage and inadequate fish screening. Biological objectives for these factors of decline include maintenance of existing healthy conditions and restoring conditions where needed. Areas of general agreement include:
The only issue of contention between the state and the NMFS deals with restoration of water flows. The quantifiable flow level with time lines that NMFS seeks exists in in-stream water rights. These issues are based on flow levels salmon need to fully utilize their habitat, and OWRD feels these are inappropriate measures since the goals are institutionally unattainable because they fail to recognize water for domestic use, municipalities, irrigation and other existing consumptive uses. (Refer to water quantity briefing paper from Bob Rice, OWRD, dated January 31, 1997 - Appendix C.)
The Oregon State Police proposes to partner with OWRD to protect and maintain existing stream flows, maintain adequate fish screening, and restore adequate fish passage. The State Police can assist with inventory assessment and permit condition compliance; enforce appropriate water use, water allocation and fish screening law. Through patrol presence, the State Police provide a deterrence to water use abuse; investigate, document and report issues regarding inadequate fish passage, fish screening and water flow; assist in educational/outreach programs, compliance indexing and organization of volunteer programs [examples: Illinois Valley pilot project on push-up dams, the Applegate River Basin diversion project and Columbia Basin fish screen enforcement project].
Oregon Department of Transportation (ODOT)
The Oregon Department of Transportation (ODOT) is not a regulatory agency and, therefore, relies on the State Police for enforcement. ODOT does enforce project specifications and plans related to water quality and wetlands as part of construction contracts. Compliance issues arising from ODOT contracts are resolved through regional staff and management. Regulatory agencies are included in the documentation and resolution of the issue. (Refer to ODOT Coastal Salmon Restoration Initiative Enforcement Package by Sue Chase dated January 31, 1997 - Appendix D.)
The Oregon State Police can assist ODOT with coordinated efforts for inventory and monitoring of culverts to ensure maintenance of fish passage and water quality issues.
Oregon Department of Fish and Wildlife (ODFW)
The Oregon Department of Fish and Wildlife (ODFW) is responsible for statutes and administrative rules regulating the protection and harvest of fish and wildlife resources. Enforcement of those provisions is the responsibility of the Fish and Wildlife Enforcement Division of the Oregon State Police. Enforcement priorities are established annually through a joint process of developing local Cooperative Enforcement Plans (CEP) between the State Police and ODFW staff. The State Police and ODFW, as partners in the Coastal Salmon Restoration Initiative, are aware of the need to protect coho and other depressed salmonids. ODFW and State Police staff will identify specific enforcement actions which are high priority for restoration of those depressed populations and incorporate them into the CEP.
ODFW will also increase emphasis on bringing water diversions and in-channel structures into compliance with regulations regarding fish passage and screening. The heightened awareness of landowners and local communities for the need to protect salmonids and enforcement of existing fish passage and screening regulations will be given higher priority. ODFW staff will approach landowners and operators of structures needing screening or fish passage provisions to encourage compliance with the requirements through cooperative means, such as fish screening cost share program; however, when that encouragement is not sufficient, State Police officers will be asked to participate in contacts and to initiate enforcement actions as necessary.
Enforcement of regulations that protect salmonid habitat can also contribute to salmon restoration. Through the Coastal Salmon Restoration Initiative, the need for habitat enforcement is becoming recognized, and ODFW will contribute by communicating with the State Police when ODFW field staff encounter possible violations of environmental laws that may pose threats to salmon restoration. (Refer to Oregon Coastal Salmon Restoration Initiative plan for increasing law enforcement efforts dated February 3, 1997, by Bruce Schmidt, ODFW - Appendix E.)
The Oregon State Police proposes to expand CEP to include issues surrounding fish passage and screening. The State Police will assist in inventory, assessment and monitoring of these issues. Action plans will be developed in conjunction with other regulatory agencies and watershed councils to ensure compliance with issues that protect and enhance salmonid and trout habitat. The State Police will assist with outreach/education programs and volunteer organization to ensure compliance with these fish issues. (Refer to memorandum dated July 23, 1996, regarding Performance Measures and Anadromous Fish Compliance Rate 1995; to memorandum dated July 23, 1996, regarding Anadromous Fish Protection Compliance Rate - Appendix E1 and E2.)
Oregon State Marine Board
(No report.)
The Oregon State Police will coordinate with the Marine Board and county sheriffs to enforce provisions of new outfitter/guide operations, monitor and report watercraft operation impacts on source and recovery streams, assist in education/outreach to Oregon boaters regarding Coastal Salmon Restoration Initiative issues, and assist in monitoring non-point pollution control programs through patrol presence and detection.
Oregon Parks and Recreation Department
(No report.)
The Oregon State Police will assist the State Parks Department with education/outreach concerning issues and protection efforts of salmonids, healthy streams, and the Coastal Salmon Restoration Initiative as well as monitor and enforce regulations governing litter and pollution in state parks (example: "Outdoor Ethics" video).
Oregon Economic Development Department
(No report.)
Department of Land Conservation and Development
(No report.)
The Oregon State Police can assist in monitoring non-point pollution control programs, especially on the Oregon Coast through patrol, documentation, investigation and enforcement of applicable state law.
Department of Geology and Mineral Industries
(No report.)
The Oregon State Police can assist in monitoring and documenting run-off problems in mining operations and enforcement of appropriate regulations governing turbidity issues. Officers will investigate, collect evidence and report to appropriate regulatory authorities.
Oregon Department of Forestry (ODF)
The Oregon Department of Forestry (ODF) implements its compliance plan with a balanced program of rule education, technology transfer and enforcement. Compliance is first achieved through education, pre-operation planning and effective communication. Written plans are used as one planning and communication tool for operations within 100 feet of most streams and up to 300 feet on sensitive sites and significant wetlands. These written plans are enforceable documents. Ongoing inspections of forest operations are based upon a priority system which, in turn, is based on potential resource damage and will include "core" areas.
Enforcement of the Oregon Forest Practices Act occurs through efforts of 54 Forest Practices Foresters (FPF's). Violation complaints are given a high priority and must be inspected within 48 hours. It is the policy of ODF that when non-compliance of a rule has occurred and damage has resulted, enforcement action will be undertaken. If damage has not yet occurred, the operator is given written direction to come into compliance. If the operator complies and avoids damage, a citation may be avoided. ODF cooperates with the State Police in taking enforcement action when the situation requires their professional expertise.
As part of the Coastal Salmon Restoration Initiative/Healthy Streams budget proposal, ODF has added Service Foresters and clerical support to provide additional program response through education to non-industrial landowners regarding rule compliance and restoration of riparian and aquatic habitat. The Service Foresters will be allocated to districts with coastal salmon streams.
(Refer to the Oregon Department of Forestry's Coastal Salmon Restoration Initiative Compliance Strategy by Ted Lorensen dated January 29, 1997 - Appendix F.)
Immediate intervention of violations can lessen impact and enhance compliance. The State Police can also participate in the compliance audit program through additional field presence for monitoring.
Department of Environmental Quality (DEQ)
The Department of Environmental Quality (DEQ) is the state's primary environmental regulatory agency with federal authorization and delegation to implement and enforce the requirements of federal environmental law. DEQ has authority to enforce various federal programs, such as sewage treatment, solid waste, hazardous waste and materials, air and water quality. In addition, DEQ has both administrative civil and criminal authority under state statute.
Approximately 70 civil inspectors are available to conduct permit processing, complaint response, inspections, and civil enforcement. A team of four criminal investigators is dedicated full-time to enforcement of environmental crimes. One Oregon State Police officer and three U. S. Environmental Protection Agency criminal investigators comprise part of DEQ's statewide environmental crime enforcement coordination team. The State Police Fish and Wildlife Enforcement Division also provides additional assistance when work loads demand the State Police to lead or assist the environmental crimes team.
The Oregon Coastal Salmon Restoration Initiative is a high priority for DEQ, and the department is dedicated to working on technical aspects of the salmon recovery plan on the Rogue, Umpqua and Tillamook Basins. Effective enforcement is a necessary and valuable tool in ensuring that any technical or environmental strategy is implemented and maintained.
DEQ has placed an equal priority on ensuring enforcement support for the salmon strategy. Managers and staff will give highest priority to complaints that have actual or potential impact on coastal salmon natural resources, such as spill response or toxic releases. Inspections that may be significant to support of the strategy will also have high priority. Managers and staff working with other governmental agencies, watershed councils, national estuary projects and local groups will provide information about the enforcement tools available and their coordination. (Refer to DEQ Enforcement Strategy for Oregon Coastal Salmon Restoration Initiative by Tom Bispham dated February 6, 1997 - Appendix G1 and G2.)
The Fish and Wildlife Division of the Oregon State Police proposes to assist DEQ with monitoring, investigating, documenting, and reporting environmental offenses related to the Coastal Salmon Restoration Initiative. The Division has enforcement officers who are trained by the Environmental Protection Agency on hazardous materials investigation. The strategic location of these officers, coupled with local knowledge of community and quick response ability, place them in positions to ensure effective and efficient enforcement of environmental law.
Coordination of Oregon State Police efforts with DEQ and other natural resource agencies and respective watershed councils can ensure an effective, efficient means to monitor, detect and investigate environmental crimes. The Fish and Wildlife Enforcement Division's capability for quick response to complaints of turbidity, fish kill or toxic spill can ensure preservation of evidence, documentation of damage, and apprehension of violators. Further, agency coordination and awareness of issues of water quality limited streams and their impacts as they relate to life cycles of salmonids will allow for directed patrols and monitoring for regulation compliance. The Oregon State Police can assist in outreach/education efforts, and organization of volunteer programs that bring community involvement and awareness to issues regarding environmental health and its relationship to restoration of salmonids (example: "Outdoor Ethics" video; Tenmile Lakes Basin action plan.)
Fish and Wildlife Enforcement Division
Role and Responsibility
The opportunity to redirect enforcement efforts of thirteen officers toward salmon and healthy streams would result in providing credibility and accountability for regulatory issues of the Coastal Salmon Restoration Initiative. These positions would be strategically placed at key or "core" areas where protection and enhancement efforts would have the greatest impact on restoration of critical fish stocks.
Officers assigned to the Fish and Wildlife Enforcement Division have years of experience in directing, partnering and accounting for work effort (CEP). Strategically assigned enforcement officers can provide a multitude of services including program development for enforcement as it relates to restoration efforts.
Elements which each officer will contribute to protection of salmon and healthy streams include:
Advocate for water resource councils through interagency cooperation and watershed council coordination
Officers and natural resource agencies can create a unified effort to gain compliance and understanding with regulatory laws governing water quality, water diversion, fill and removal, forest practices and land use. Further officers will investigate incidents involving waterway pollution, hazardous materials violations, industrial waste violations, pesticide use violations and point source and non-point source pollution.
CONCEPT II
Organizational Approach to Habitat/Environmental Enforcement
To ensure optimum enforcement effort and accountability for salmon protection and enhancement, state resource agencies and State Police enforcement must coordinate on a formal basis. Enforcement should focus on regulatory laws that most closely relate to salmon protection and restoration. Such coordination will provide for an effective and efficient enforcement effort which:
The forum from which the planning effort will be developed is similar to the Cooperative Enforcement Plan (CEP) process now established between the State Police and ODFW. CEP provides a directed and planned approach that can measure and account for compliance criteria required by NMFS in the Coastal Salmon Restoration Initiative.
A Cooperative Interagency Enforcement Plan (C.I.E.P.) for natural resource agencies and the State Police (plan of work):
Lastly, a Cooperative Interagency Enforcement Plan (C.I.E.P.) provides a platform from which federal agencies, watershed councils or water basin steering committees may partner, participate and cooperate.
CONCEPT III
Inclusion of Federal Agencies and Watershed Councils Into Interagency Enforcement Action Plans
The Oregon Coastal Salmon Restoration Initiative plan recognizes that factors or conditions that have reduced or limited the production of native species in individual basins must be identified and corrected at the watershed level. The protection and restoration effort must involve cooperation and commitment from local communities as well as governmental agencies. Watershed councils have been developed and provide the means for organizing, directing and implementing change, and attaining the goals of the Coastal Salmon Restoration Initiative. A C.I.E.P. can provide the means to a unified approach to protection and regulation compliance.
Inclusion and participation of watershed councils with the enforcement component is an absolute necessity. Through effective partnering with watershed councils, regulation compliance may be accomplished through voluntary means. Watershed councils provide the means for outreach to local communities with education and understanding of regulatory compliance. Law enforcement can demonstrate patience and bring about compliance by providing direction, reason, understanding, dedication and involvement. Watershed support may be demonstrated through commitment of agency resources as well as assistance with inventory, assessment, monitoring, participation, resolution of administrative roadblocks, and development of outreach and education programs.
To conclude, restoration of critical fish stocks must include a strategy that is reliably implemented, identifies enforcement measures and details a comprehensive monitoring scheme. Implementation of a formal plan structured in accountability can ensure a successful plan for protection and restoration of salmon.
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Created March 4, 1997
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