Oregon Coastal Salmon Restoration Initiative

Background

Oregon's Statewide Planning Program provides a fundamental framework for allocating lands among a broad variety of uses across the entire state. Activities on all state and private lands are influenced to some degree by Oregon's planning program. Oregon's program, first adopted in 1973, provides a basic level of resource protection through the adoption of enforceable local comprehensive land use plans. Oregon law requires that all local governments adopt a comprehensive plan for the use of lands within their jurisdiction. Local plans are required to comply with a set of 19 Statewide Planning Goals (see list below) adopted by the Land Conservation and Development Commission (LCDC). A summary of local comprehensive plan provisions that are most likely to have a direct effect on coastal salmonid habitat is an Attachment to this document.

Statewide Planning Goals

Oregon's Statewide Planning Goals (Goals) are the foundation of the state's comprehensive land use planning program. The goals establish state policies on land use, resource management, economic development, and citizen involvement. Essentially, the goals establish requirements for how certain lands are to be used, how land development is to occur, and how land use decisions are to be made.

There are 19 Statewide Planning Goals:

• Citizen Involvement
• Land Use Planning
• Agricultural Lands
• Forest Lands
• Open Spaces, Scenic, Historic, and Natural Resources
• Air, Water, and Land Resources Quality
• Areas Subject to Natural Disasters and Hazards
• Recreational Needs
• Economic Development
• Housing
• Public Facilities and Services
• Transportation
• Energy Conservation
• Urbanization
• Willamette River Greenway
• Estuarine Resources
• Coastal Shorelands
• Beaches and Dunes
• Ocean Resources

The Land Conservation and Development Commission (LCDC) is responsible for adopting and interpreting the Statewide Planning Goals. More importantly, the LCDC reviews local comprehensive plans for compliance with the applicable goals. Through its review, LCDC assures that all local plans meets all of the applicable goal requirements, and that local ordinances are adopted to implement the plan. All local plans in Oregon have been reviewed by LCDC and have been certified as being in compliance with the Statewide Planning Goals.

The Statewide Planning Goals are periodically amended to reflect case law, changing circumstances, and evolving state requirements. All local jurisdictions are required to periodically review their plans to ensure that they remain effective and in compliance with the goals. The process of periodic review is described below.

Local Government Role

Oregon's planning program is a partnership between the state and local governments. While the LCDC develops the Statewide Planning Goals and reviews plans for compliance with the goals, local governments are the primary implementing authorities for the goals. For example, the goals require that forested lands be preserved for forestry uses, but local plans designate which lands are forest lands, and what activities are permitted on such lands. Everyday land use decisions -- essentially the review of development proposals of varying degrees of scope and complexity -- are made by local governments, as governed by the policies and requirements of their comprehensive plans and implementing ordinances.

A comprehensive plan is an enforceable policy document which is typically implemented by locally-adopted ordinances which specify how lands are to be used and developed. Every jurisdiction with a plan has some kind of ordinance to regulate land uses and another to regulate land divisions. Comprehansive plans are developed after completing an inventory of lands, land uses, and natural resources, and assessing the capability of lands to support different uses. Local plans reflect the need to balance the protection of resources with the need to provide land for the growth of the community. Comprehensive plans are an effective mechanism for influencing land use patterns and, to some extent, site design (i.e., where subdivisions can occur, and how subdivision lots provide for the protection of riparian resources). In Oregon, local plans developed in compliance with the Statewide Planning Goals have their greatest influence on residential, commercial, and industrial land use activities. Local plans are not a viable mechanism for controlling resource management activities such as farming and forestry on lands designated for such uses.

Oregon's planning program is based in part on the need to periodically update comprehensive plans. Thus, every few years every jurisdiction must review its plan in light of changing circumstances and new requirements. The process, called Periodic Review, results in a work program for the jurisdiction to complete over several years. Most work program items are expected to result in changes to the local plan.

The Land Conservation and Development Commission and the Department of Land Conservation and Development do not directly regulate land uses. They do not make local land use decisions. However, through the mechanism of a comprehensive plan which is in compliance with the Statewide Planning Goals, all land use decisions in the state conform to the requirements of the Statewide Planning Goals. Responsibility for implementing comprehensive plans rests with local governments.

Oregon Coastal Management Program

The Oregon Coastal Management Program is a federally approved state program for the conservation and management of coastal resources. Oregon's coastal program reflects the opportunities and requirements of the federal Coastal Zone Management Act, in part through the requirements of four of Oregon's Statewide Planning Goals, commonly referred to as the Coastal Goals.

The four Coastal Goals are:

Goal 16 - Estuarine Resources
Goal 17 - Coastal Shorelands
Goal 18 - Beaches and Dunes
Goal 19 - Ocean Resources

Oregon's Coastal Management Program is a network of state and local programs and authorities governing the use of land and resources in the coastal zone. For example, the coastal program includes:

• DEQ's pollution control laws.
• Department of Forestry's forestry management laws and programs.
• Division of State Lands' Removal­Fill authority.
• Local comprehensive plans developed according to the requirements of the Statewide Planning Goals.

Local government comprehensive plans (which are based in part on the coastal goals) contain policies and requirements for the use of estuaries, shorelands, and beaches and dunes. Given the limited scope of local jurisdictions over marine waters and resources, local plans do not implement the Ocean Resources Goal.

The Estaurine Resources and Coastal Shorelands Goals offer significant resource protection in support of salmon protection and restoration.

Aquatic Resource Protection Elements of Oregon's Land Use Program

Statewide Planning Goal 16, Estuarine Resources
The basic value of Goal 16 is to protect the diversity of estuarine resources. Oregon's estuaries are classified according to the the intensity of development or alteration that can occur in an estuary. Under the Oregon Estuary Classification system, estuaries are placed into one of four classifications:

• Deep­Draft Development Estuaries: Columbia River, Yaquina Bay, Coos Bay
• Shallow­Draft Development Estuaries: Tillamook Bay, Nehalem Bay, Depoe Bay, Siuslaw River, Umpqua River, Coquille River, Rogue River, and Chetco River
• Conservation Estuaries: Necanicum River, Netarts Bay, Nestucca River, Siletz Bay, Alsea Bay, and Winchuck River
• Natural Estuaries: Sand Lake, Salmon River, Elk River (Curry County), Sixes River, and Pistol River

All other estuaries are defined as either Conservation or Natural estuaries.

The Estuarine Resources Goal establishes the level of use appropriate for each estuary classification. To do so, the goal defines Natural, Conservation, and Development management units, and the uses and activities that are permissible in each type of management unit. For example, navigation is an allowed use in all management units, but marinas requiring dredge and fill of estuarine areas are only permitted in development management units. Finally, through the local planning process, estuaries are essentially "zoned" by the designation of management units for all estuarine areas.

Goal 16 establishes that:

• Development management units may only be designated in estuaries in the Development classification.
• Conservation management units may be used in estuaries in both Conservation and Development classifications.
• Natural management units may be used in all Oregon estuaries.

The most valuable estuarine habitats are protected through their designation as Natural management units; virtually no alterations of estuarine habitat are permitted in Natural management units.

Local jurisdictions have developed comprehensive plans -- called "estuary management plans" -- for the use and management of estuarine resources. LCDC has acknowledged that the all the estuary management plans comply with the requirements of Goal 16. Nearly 94 percent of all estuarine areas in the state are placed in conservation or natural management units. Over 99 percent of the state's tidal marshes have been placed in natural or conservation management units. Since the adoption of Goal 16 and the development of estuary management plans, development pressures on Oregon's estuarine resources have been significantly reduced.

Statewide Planning Goal 17, Coastal Shorelands

Goal 17, Coastal Shorelands, establishes priorities for the use of coastal shorelands, and requires that certain shoreland resources be protected from development. In particular, Goal 17 requires protection of riparian resources and significant wetland habitats (major marshes) within areas subject to the goal. The Shorelands Goal does not apply to all shorelands in the coastal zone, but rather to lands adjacent to the ocean, estuaries, and coastal lakes. (A more detailed description is contained in the goal.)

All of the resource protection provisions the Statewide Planning Goals rely on an accurate inventory of the resource, as well as some idea of what kinds of land use activities are of potential harm to that resource. Under the Coastal Shorelands Goal, local jurisdictions are required to inventory riparian resources, especially vegetation helpful to maintaining fish habitat. The Coastal Shorelands Goal riparian protection requirements have been integrated into local plans and ordinances.

Statewide Planning Goal 5, Open Spaces, Scenic, Historic, and Natural Resources

Statewide Planning Goal 5, Open Spaces, Scenic, Historic, and Natural Resources, requires local governments to develop plans and implement ordinances to protect natural resources. The goal was implemented by administrative rules developed in 1974. The rules required that local governments inventory natural resources; inventories were judged sufficient when there was information on "location, quality and quantity" of the resource. Local jurisdictions that did not have sufficient information on the location, quality and quantity of a resource were allowed to not include the resource in their Goal 5 inventory, on the expectation that the inventory would be completed and the resources protected.

When a resource inventory is completed, the local government must determine if the resource is "significant." For all "significant" resources, the local government must develop a management plan to protect the resource fully, partially, or not at all.

In July 1996, the Land Conservation and Development Commission amended the rules for local planning requirements under Statewide Planning Goal 5, Open Spaces, Scenic, Historic, and Natural Resources. The amended rules contain new requirements for the way wetlands and riparian corridors are addressed in local plans. The most significant change is that local jurisdictions are now required to either inventory and protect riparian corridors, or adopt basic "safe harbor" riparian protection contained in the rule which have been deemed to meet the resource protection requirements of Goal 5. The "safe harbor" provisions establish basic riparian area protections.

The safe harbor provisions for protecting riparian areas require that local governments protect riparian corridors, as follows:

• 75 feet from the top of each bank of streams with an average annual flow of 1000 cfs.
• 50 feet from the top of each bank of lakes and all other fish­bearing streams.

The new Goal 5 requirements do not apply to resource management activities on resource lands.

As noted above, most coastal jurisdictions already implement riparian protections. Setbacks of 50 feet are common for larger streams, but they are typically much less for smaller streams. Virtually all local plans will need to be amended to incorporate the new Goal 5 riparian provisions.

The new requirements for Goal 5 must be implemented either through a jurisdiction's next regularly scheduled Periodic Review, or through a Plan Amendment specifically intended to adopt the new requirements. Since most coastal jurisdictions have already developed their multi­year Periodic Review work programs, changes could occur over the next five to seven years. Alternatively, given sufficient funding to pass through to local governments to do the work necessary to amend their local plans and ordinances, the new Goal 5 riparian rules could probably be implemented within four years.

The new Goal 5 rules also require local jurisdictions to complete wetland inventories. Outside urban growth boundaries, local governments must use information from the National Wetlands Inventory. Within urban growth boundaries, local governments must conduct more detailed inventories and identify significant wetlands for protection. The Local Wetland Inventories must be adopted as part of the comprehensive plan.

Planning Protections by Gene Conservation Unit

Northern Oregon Drainages (North of Umpqua)
The drainages of the northern Oregon coast include all of Tillamook, Lincoln and parts of Clatsop, Columbia, Washington, Yamhill, Polk, Benton and Lane counties. Planning protections in those areas include the following:

• The drainages of the Necanicum and Ecola Creek and the upper Nehalem in Clatsop County require all structures to be located outside the zone of riparian vegetation, unless direct water access is required.
• The Necanicum and Ecola Creek estuaries are designated as conservation estuaries.
• The city of Seaside does not have specific riparian setback requirements.
• The city of Cannon Beach requires a 10 or 15 feet setback on both sides of all streams. Columbia County has a 50 feet setback from all class 1 streams and a 25 feet setback from all other streams, rivers or sloughs. These setbacks apply to the upper Nehalem.
• Tillamook County has a setback from all streams of 50, 25 or 15 feet depending on the size of the stream. The county has an ordinance that requires retention of at least 50 percent of the forest and understory vegetation of the riparian corridor. These standards apply to the lower Nehalem and all drainages to Tillamook Bay, Netarts, Nestucca, Neskowin, Salmon River and Sand Lake.
• Tillamook and Nehalem bays are designated as shallow draft development estuaries; Netarts, Nestucca and Neskowin are designated as conservation estuaries; and Sand Lake and Salmon River are designated as natural estuaries.
• Drainages in Lincoln County have a 50­foot setback required. These setbacks apply to the Siletz, Depoe Bay, Big Creek, Yaquina River, Beaver Creek, Alsea River, and Yachats River.
• Lane County has established a 100­foot setback from all Class 1 streams. This requirement applies to: Tenmile Creek, Big Creek, Berry Creek, Sutton Creek ,and the Siuslaw and Siltcoos Rivers.
• Douglas County requires a 50­foot setback from Tahkenitch Creek.
• There are riparian setbacks for nearly all streams in the north Oregon coast; however, the setback requirements are not consistent across jurisdictional boundaries.

Umpqua Basin
Nearly the entire drainage of the Umpqua is within Douglas County. Planning protections in that basin include the following:

• The county requires a 50­feet building setback from all streams.
• Cities in Douglas County have less specific or smaller buffers (25­50 feet).
• Umpqua River is a shallow draft development estuary.

South Coast, North of Cape Blanco
Coos County is drained by Coos and Coquille Rivers, Tenmile Creek, and the drainages of the Twomile, New River, and Fourmile Creek. Floras Creek and Sixes River drain northern Curry County. Protection measures in those areas include the following:

• Curry County requires a 50­feet setback from all perennial streams. (Coos County did not report their riparian protection ordinances.)
• Coos Bay is a deep draft development estuary; Coquille is a shallow draft development estuary, and the remainder are classified as natural.

Rogue Basin
The Rogue basin drains much of Jackson and Josephine counties. Protection measures in that basin include the following:

• A significant portion of Curry, Jackson, and Josephine counties have riparian setbacks of 50 feet from Class 1 streams, and 25 feet from Class 2 streams.
• The Rogue estuary is a shallow draft development estuary.

South Coast, South of Cape Blanco
Protection measures specific to this area include the following:

• The drainages of Curry County are protected from development by a 50­feet setback.
• The Chetco River is designated as shallow draft development estuaries, and the smaller estuaries are designated as natural estuaries.

The Coastal Nonpoint Pollution Control Program

Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA), Protecting Coastal Waters, requires states with federally­approved coastal management programs to adopt enforceable measures to protect coastal waters from nonpoint source pollution. State programs developed under Section 6217 are to be jointly developed by the state's pollution control agency and the state's coastal zone management authority. Development of Oregon's Coastal Nonpoint Pollution Control Program (CNPCP) has been managed and coordinated by DEQ and the coastal program in DLCD.

Section 6217(g) requires states to implement nonpoint source pollution control management measures according to guidance published by EPA. EPA's guidance contains 56 nonpoint source pollution control management measures that address the water quality effects of virtually all land uses and resource management activities in coastal basins. The measures in a state program are required to be backed by the state's enforcement authority. EPA's guidance contains six categories of management measures that must be implemented through the state's program:

• Agricultural management measures
• Forestry management measures
• Urban management measures
• Management measures for Marinas and Recreational boating
• Management measures for hydromodification activities such as dredging, fill, and the construction and operation of dams
• Management measures for protecting wetlands and riparian areas.

Oregon submitted its CNPCP to NOAA and EPA for their review in July 1995. Oregon's program submittal addressed all of the program requirements by (1) identifying state and local programs that already implement Section 6217 requirements; and (2) describing activities necessary to implement the measures that are not already in place, and identifying an anticipated timeframe for implementing such measures. In its CNPCP submittal, Oregon anticipated having most of the CNPCP requirements implemented within three to five years from the time of program approval, although the program guidance allows a considerably longer time for full implementation.

In February 1997, NOAA and EPA finalized their draft findings on Oregon's program submittal. The proposed findings indicate where existing programs may meet federal requirements under Section 6217, and where further work is needed. For the most part, NOAA and EPA's findings (1) identify where state and local programs do not implement the required measures, and (2) specify a condition for implementing the measure. For the most part, the proposed conditions will be met by the proposed activities described in the program submittal.

Briefly, NOAA and EPA's findings indicate that:

• Many of the agricultural management measures are not implemented.
• Several measures to address the effects of urban development are not in place.
• Most of the measures to address activities in marinas are not in place.
• Some of the requirements related to channel maintenance are not implemented.
• Riparian area protections do not meet the CNPCP requirements.

In addition, the draft findings indicate that Oregon must address the need for the CNPCP in areas upstream of the coastal zone in the Rogue and Umpqua basins, and that the state must develop a process for identifying the need for additional pollution control management measures.

NOAA and EPA's findings constitute a "conditional approval" of Oregon's program. Under NOAA and EPA's conditional approval, the state must meet several conditions in order to not be subject to sanctions in the original legislation (loss of federal funding for water quality and coastal resource management programs). Oregon's CNPCP submittal describes the activities necessary to meet virtually all of NOAA and EPA's conditions.

The proposed conditions for approval of Oregon's CNPCP represent an extensive work program for implementing pollution control measures in the coastal zone. While each condition on its own is probably a manageable work task, the entire set of conditions will be too large for the available resources.

Ultimately, Oregon's continued implementation of the Coastal Nonpoint Pollution Control Program is contingent on continued federal funding for the program. In fact, work on the CNPCP in Oregon is in jeopardy due to lack of funding. Federal funding for development of state programs under Section 6217 ended on June 30, 1995. Oregon will not be able to fulfill all of the conditions of NOAA and EPA's approval without a solid source of funding.

At the most fundamental level, the CNPCP requires that people change the way they have been doing things for many years, in some cases for generations. Effecting such changes cannot be accomplished without direct support for the CNPCP from either state or federal sources.