I. Introduction

II. Salmon Habitat Protection and Landowners' Property Rights

III. Coastal Coho Salmon Recovery

IV. The Oregon Coastal Salmon Restoration Initiative (OCSRI)

V. The Federal-State Memorandum of Agreement (MOA)

VI. Elements of the OCSRI

VII. Conclusion

REFERENCES

ACRONYMS

This memo is the result of research sponsored in part by Oregon Sea Grant with funds from NOAA Office of Sea Grant, Department of Commerce, under Grant No. NA36RG0451 (Project R/PPA-41). The authors gratefully acknowledge the manuscript assistance of Nancy Farmer and the research assistance of Andrea Coffman.

In February 1998 the National Marine Fisheries Service (NMFS) listed California Central
Valley and Lower Columbia River steelhead as threatened and proposed listing 13 other West
Coast salmon and steelhead populations as threatened or endangered under the federal
Endangered Species Act (ESA). In anticipation, West Coast salmon recovery efforts have
spread rapidly beyond the Columbia-Snake River Basin, where recovery efforts have proceeded
under the twin auspices of the ESA and the Northwest Power Planning Act (Brown 1995;
Hildreth &;Thompson 1994; Patis 1996). For salmon recovery outside the Columbia Snake
River Basin, a more diverse set of federal, state, and local laws and programs‹including the
ESA but excluding the Northwest Power Planning Act‹comes into play. Outside the
Columbia-Snake River Basin, the contributing causes to salmon decline tend not to include
major dams like those in the Columbia-Snake River Basin, whose operation has been the focus
of much of the litigation surrounding salmon recovery there. Two 1997 federal district court
decisions allowed continued operation of the Columbia-Snake River dam system without many
of the major changes proposed by salmon recovery advocates (American Rivers 1997b, 1997c;
Dahlstrom &;Hildreth 1997b). Thus, to paraphrase Lewis and Clark College law professor Dan
Rohlf, the Columbia and Snake Rivers continue to be operated as a system in which grain
travels on the rivers while salmon travel in trucks on Interstate 84 (Rohlf 1995). The four-state
Northwest Power Planning Council may revise its 1994 Columbia River Basin Fish and Wildlife
Program pursuant to a 1996 amendment to the Northwest Power Planning Act to reflect the
latest scientific thinking on Columbia-Snake River salmon recovery contained in several federal,
state, and tribal recovery proposals, but the prognosis for successful Columbia-Snake River
salmon recovery remains decidedly mixed (Blumm, Schoessler &;Beckwith 1997; Volkman
1997).

ESA listings for West Coast coho, steelhead, chum, sockeye, chinook, and cutthroat trout
runs can involve legal and physical circumstances that are quite different from those of
Columbia-Snake River salmon. Some of these were discussed in Hildreth's Legal Brief in the
Summer 1996 issue of Oregon Sea Grant's Restoration newsletter concerning coastal coho
recovery and Governor John Kitzhaber's Oregon Coastal Salmon Restoration Initiative (OCSRI)
(Hildreth 1996). Governor Kitzhaber's initiative joined two other Oregon salmon restoration
initiatives, those mandated by the 1995 Oregon legislature under Senate Bill 1127 and House
Bill 2615. The 1997 Oregon legislature reestablished the Coastal Salmon Restoration and
Production Task Force, which was created by 1995 Oregon Senate Bill 1127. Like the
governor's initiative, the legislative initiatives were oriented toward avoiding further listings
under the federal ESA and reestablishing sustainable commercial and recreational salmon
fisheries in the state. Similar salmon, steelhead, and bullhead trout restoration initiatives are
underway in other West Coast states and on a region-wide basis at the instigation of the
region's state governors. For weak Atlantic salmon, in December 1997 NMFS deferred any ESA
listing and accepted Maine's comprehensive conservation plan.

Detailed analyses of Governor Kitzhaber's coastal salmon initiative and the federal
response are included in this memo. Other significant new directions in coastal salmon recovery
law and policy include the following:

1. Implementing the 1996 Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA) salmon habitat protection and restoration amendments. In amending the MSFCMA in
1996, Congress found in section 2(9) that "one of the greatest long-term threats to the viability
of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other
aquatic habitats. Habitat considerations should receive increased attention for the conservation
and management of fishery resources of the United States." Under new section 303(a)(7),
salmon fishery management plans (FMPs) prepared by regional fishery management councils
such as the North Pacific Fishery Management Council and the Pacific Fishery Management
Council (PFMC) are required to identify essential fish habitat (EFH) used by managed fishery
resources, minimize adverse effects on the identified habitat caused by fishing, and identify
actions to encourage the conservation and enhancement of EFH. Under section 3(10), EFH is
defined broadly as "those waters and substrates necessary to fish for spawning, breeding,
feeding, or growth to maturity." Thus, NMFS's implementing regulations and accompanying
technical guidance manual view these new statutory provisions as introducing ecosystem
considerations into federal fisheries management (62 Federal Register 66531 (1997); NMFS
1997). The high priority placed on satisfactory habitat also is stressed in the OCSRI, as
discussed further below.

To promote interagency and intergovernmental respect for EFH, new section 305(b)
requires that federal agencies consult with the secretary of commerce on any activity authorized,
funded, or directly undertaken by them that may adversely affect EFH. Similarly, the regional
fishery councils may make recommendations to the secretary and any federal or state agency
whose activities may affect the habitat of a fishery resource under council authority, including
but not limited to EFH. The councils must comment on habitat impacts involving anadromous
fish, and, based on such comments and consultations, the secretary must recommend to the
relevant agency measures that would conserve the affected habitat. The federal agency must
respond to such recommendations within 30 days with the agency's measures for avoiding the
habitat impact and its reasons for not following any of the secretary's recommendations. The
federal government's focus on interagency and intergovernmental coordination is mirrored by
provisions and policies contained in the OCSRI.

Without the benefit of specifically identified EFH and any statutory basis for secretarial
involvement, similar council comment and recommendation provisions in prior law did not
appear to have much substantive impact on state and federal agency actions adversely
affecting fish habitat. The new habitat provisions more closely parallel the interagency
consultation provisions of the ESA under which some substantive protection of habitat
(including salmon habitat in the Pacific Northwest) has been achieved. Salmon EFH identified
in regional council salmon FMPs will include EFH in coastal watersheds and estuaries,
complementing salmon critical habitat designated under the ESA.

A key salmon habitat protection implementation step will be the integration into the new
MSFCMA EFH process of the fish habitat protection provisions found in the statutes,
regulations, plans, and policies of other relevant federal, regional, state, local, and tribal
programs, including the six national marine sanctuaries in the region; the six national estuarine
research reserves in the region; the four states' coastal zone management programs, including
state ocean and territorial sea plans (Hildreth 1995); the six national estuary projects in the
region; the Pacific States Marine Fisheries Commission; federal and state salmon recovery plans,
including the OCSRI; the Northwest Power Planning Council's Fish and Wildlife Program; and
the salmon habitat protection programs of the region's Indian tribes and coastal local
governments, ports, and watershed councils. The first three, as relevant Department of
Commerce programs, are mandated by new MSFCMA section 305(b)(1)(C) to "further the
conservation and enhancement" of council-designated EFH. In California alone, over one
hundred ocean areas have been set aside by a variety of government entities for a range of
purposes, including fish habitat protection (McArdle 1997).

Also benefiting the region's salmon will be the integration into the MSFCMA EFH process
of the regionally relevant U.S. international fisheries agreements, such as the 1995 United
Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks (signed and
ratified by the United States but not yet in force) and the agreement among the United States,
the Russian Federation, and four distant water fishing nations on pollock resources of the
Central Bering Sea.

2. Orchestrating the recovery of weak species such as cutthroat trout (listed as endangered in
the Umpqua River, 61 Federal Register 41514 (1996)) and West Coast steelhead (so far seven
populations listed as threatened or endangered), which are fished recreationally rather than
commercially, while minimizing the impacts on recreational fishing. Federal policy (61 Federal
Register 27978 (1996)) supports continued recreational fishing where impacts on ESA-listed
species are minimized. Habitat conservation plans that are federally approved under ESA
section 10(a) are one pathway that Oregon, Washington (61 Federal Register 15959 (1996)),
and Idaho (61 Federal Register 28182 (1996)) are pursuing to legalize recreational fishing that
targets or incidentally takes an ESA-listed species (Ramsey 1996). Oregon at least identifies
continued recreational use of the fishery as an important goal.

3. Implementing legal and administrative processes that improve water quality and help anadromous fish recovery. Water quality initiatives of potentially great significance to anadromous fish recovery include

a) The February 20, 1998, listing by the Oregon Department of Environmental
Quality (DEQ), subject to federal Environmental Protection Agency approval, of 1163
Oregon stream segments as "water quality limited" pursuant to federal Clean Water Act
(CWA) section 303(d), which will require both point and nonpoint source polluters who
contribute to the water quality violations to adjust their activities through the total
maximum daily load process. The applicable water quality standards were recently
amended to include temperature standards designed to aid fish survival. Achieving those
standards through the section 303(d) process would be a major step toward anadromous
fish recovery. The 1995 decision of the Ninth Circuit Court of Appeals in Northwest
Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995), cert. denied,
U.S. Sup. Ct. No. 95-1732 (June 24, 1996), provides significant opportunities for citizen
involvement in this water quality improvement process. Similar listings are occurring in
other states in the region.

b) The application of Oregon's coastal nonpoint source pollution control program
(DEQ &;DLCD n.d.) throughout the entire Umpqua and Rogue River basins, which would
aid significantly the recovery of weak anadromous fish stocks in those two key coastal
basins. The program was prepared and federally approved pursuant to section 6217 of
the Coastal Zone Act Reauthorization Amendments of 1990. It requires the use of
improved best management practices to further reduce runoff pollution from activities
such as forestry, agriculture, and land development that have adversely affected
anadromous fish stocks in the past. Federal agencies such as the Forest Service and the
Bureau of Land Management have to act consistently with the requirements of Oregon's
coastal nonpoint source pollution program now that it has been federally approved
pursuant to section 6217. The other West Coast states have developed similar programs
under section 6217.

c) The implementation of the 1996 federal district court decision in Oregon Natural
Desert Association v. Thomas, 940 F. Supp. 1534 (D. Or. 1996), appeal pending (9th Cir.
1997), requiring federally permitted grazing on public lands to be carried out in
compliance with state water quality standards for streams adversely impacted by cattle
grazing on adjacent public lands (Dahlstrom &;Hildreth 1997a).

d) Rigorous state enforcement of Oregon Revised Statutes (ORS) section 468B.060,
which imposes unlimited liability for damages and restoration costs for injuries to fish
(such as salmon), wildlife, and their habitat resulting from pollution or the violation of any
permit, orders, or rules of the Oregon Environmental Quality Commission (EQC), and
ORS section 496.705, which fixes liability to the Oregon Fish and Wildlife Commission for
unlawful takings of salmon and steelhead at $125 per fish. Similar provisions in
California law have played an important role in protecting fish and their aquatic habitat
(Department of Fish &;Game 1992; California Trout 1990).

4. Emphasizing the connections between the recovery of weak salmon, steelhead, and cutthroat
trout stocks and the recovery of other endangered and threatened species also dependent on healthy
watersheds and coastal ecosystems for their recovery. Actions taken toward the recovery of
endangered Umpqua River cutthroat trout and the seven West Coast steelhead populations,
which were listed as threatened or endangered in 1997 (62 Federal Register 43937 (1997)) and
1998, will also aid the recovery of weak salmon runs in those same streams and rivers. The
Umpqua River cutthroat listing has led to reductions in river sedimentation caused by
wintertime highway sanding practices, to litigation challenging a NMFS opinion that the
Northwest forest plan adequately protects those trout from the adverse impacts of national
forest timber harvesting on their habitat, and to designation of the entire Umpqua River Basin,
including its tributary streams, as critical habitat.

Potentially affected Oregon steelhead runs cover the broadest area, including several
coastal rivers as well as the Columbia and Snake. Oregon Governor Kitzhaber's staff, working
with state agencies, has created a steelhead recovery plan as a supplement to the OCSRI (State
of Oregon 1997b). Idaho Governor Phil Batt also released a state wild steelhead recovery plan.
That plan included a "normative" river approach that is based on improved river conditions
and designed to end the barging of steelhead (Big River News, Spring 1997). Many of the
measures utilized to restore coho salmon populations and habitats also will similarly benefit
steelhead populations. Like the OCSRI, Oregon's steelhead supplement is an effort to avoid
further ESA listings of specific steelhead runs and retain state authority over management of
Oregon's natural resources. The steelhead supplement requires similar restoration measures
over the expanded geographic area covered by Oregon's steelhead populations‹populations
that sometimes range into neighboring states. While restoration measures directed at the coastal
coho primarily affect coastal areas, the wide-ranging steelhead populations will require efforts
that address a much larger area of the state and much more of its waters. Furthermore, the life
cycle of steelhead is different from that of coho salmon.

In some streams, salmon recovery also is linked to the recovery of weak bull trout
populations, for which the U.S. Fish and Wildlife Service has responsibility under the ESA.
Responding to litigation, the Fish and Wildlife Service has proposed listing bull trout in the
Klamath River as endangered and bull trout in the Columbia River as threatened (62 Federal
Register 32268 (1997)). The Service also is studying the status of bull trout in other rivers,
including rivers in Idaho, where recovery has commenced under the state's July 1996 bull trout
conservation plan (Big River News, Fall 1997). A federal district court also has ruled that some
federal forest management practices in five western states are inadequate to protect bull trout.

Beyond the recovery of connected fish stocks, there are positive connections between the
recovery of listed forest bird species such as the spotted owl and the marbled murrelet and
weak anadromous fish runs. In a recent court decision important for the recovery of both
spotted owls and anadromous fish, the Ninth Circuit Court of Appeals rejected timber industry
legal challenges to the validity of the Northwest forest plan, thereby clearing the way for the
implementation of its species recovery­oriented provisions (Seattle Audubon Society 1996).

Even more impressive has been the judicial support for the threatened marbled murrelet in
the face of harmful logging proposed under the federal salvage timber rider law (most
provisions of which expired on September 30, 1996). Twice in 1996, the Ninth Circuit Court of
Appeals upheld restrictions on logging in old growth national forests in California, Oregon, and
Washington that serve as egg-laying habitat for the marbled murrelet and can be important
habitat also for anadromous fish (Dahlstrom &;Hildreth 1997b; Marbled Murrelet 1996;
Northwest Forest Resource Council 1996). Protection of the marbled murrelet also has been
extended to privately owned coastal forest lands not covered by the now expired federal
salvage timber rider. For example, in March 1996, the California Board of Forestry, acting
under the authority of both the federal ESA and California's endangered species law, rejected a
timber company's proposed road construction activities that would have led to the elimination
of marbled murrelet habitat (Environmental Law Reporter 1996). More recently, extensive
habitat critical to the recovery of the marbled murrelet, whose protection also will aid
anadromous fish recovery, was designated under the ESA in coastal forests up and down the
West Coast (61 Federal Register 26256 (1996)), and a final murrelet recovery plan has been
issued. In that designated habitat, important to both the murrelet and anadromous fish,
regulatory attention will focus on the impacts of logging, farming, grazing, and streamside
development on species recovery. Despite the foregoing protective steps, concerns about the
survival of the marbled murrelet have led to the filing of a petition to change the murrelet's ESA
status from threatened to endangered. Listing of the murrelet as endangered would further
strengthen the connections between murrelet recovery and West Coast anadromous fish
recovery.

II. Salmon Habitat Protection and Landowners' Property Rights

Approximately two-thirds of coho riparian habitat is in private ownership. Protecting
and restoring this habitat requires a combination of voluntary programs, including landowner
incentives (62 Federal Register 32178, 32183, 32189 (1997); Thompson 1997), with mandatory
requirements sufficient for achieving recovery. However, habitat protection legislation and
regulations must not unconstitutionally infringe upon landowners' rights protected under the
U.S. Constitution's Fifth Amendment and under similar state constitutional provisions. Recent
federal and state court opinions provide important guidance on how to draft and administer
habitat protection legislation and implementing regulations constitutionally and fairly.

First, compensation generally is not constitutionally required for the enforcement of
restrictions existing at the time the landowner purchased the property (Anello 1997; Good
1997; Kim 1997). Presumably the purchase price paid by the current owner reflected those
restrictions (Buechel 1994). For example, a series of recent state court opinions supports
enforcement of restrictions on altering wetlands without compensation against landowners who
purchased the land after the restrictions went into force (Alegria 1997; Basile 1997; Gazza 1997;
Kentucky Fried Chicken 1997; Palazzolo 1997).

Second, the constitutional analysis of habitat protection restrictions imposed after the
current owner purchased the property is much more complex. Subsequent legislative and
regulatory restrictions that render the land completely valueless must be accompanied by
compensation unless they reflect use restrictions that the courts would impose under the judge-
made common law rules of property or nuisance law (First English Evangelical Lutheran Church
1987; Lucas 1992). Whether restrictions that render only a portion of a parcel valueless must
similarly be compensated has not yet been clarified by the courts (Zealy 1995). The Oregon
Supreme Court recently recognized that compensation may be required for state timber harvest
restrictions imposed on 56 acres of a 64-acre private parcel to protect the spotted owl and
remanded the case for a trial in which $1.8 million was awarded (Boise Cascade Corporation
1997). A much earlier Washington decision supports the imposition of reforesting obligations
on private timber landowners without compensation (State 1949). In addition, the Connecticut
Supreme Court recently upheld state denial of a permit to clear-cut 55 acres of private timber
land that was located in a sensitive floodplain (Cannata 1996).

Even if all or part of the property is not rendered valueless by a subsequently enacted
restriction, compensation still may be constitutionally required based on a judicial balancing of
factors, including the restriction's economic impact and interference with the owner's
investment-backed expectations (Broadwater Farms Joint Venture 1997; Forest Properties, Inc.
1997; Kavanau 1997). Thus, out of fairness and constitutional concerns, newly adopted
habitat protection legislation and regulations should extend hardship relief in the form of
variances, exceptions, and transferable development rights to the landowners who are most
severely impacted. The role that transferable development rights can play in habitat protection
is illustrated by recent litigation challenging California and Nevada's joint scheme to protect
Lake Tahoe's water quality (Suitum 1997).

Third, and finally, habitat protection obligations imposed as part of a development
permit issued to a landowner must be shown by the imposing government agency to be related
to the development's adverse habitat impacts and "roughly proportional" to those impacts
(Dolan 1994). Those obligations that include government or public access to the property will
be scrutinized especially closely (Dolan 1994). However, use of private property by wildlife,
including ESA-listed species, generally does not require compensation, even where the property
owner's domestic animals are injured by the wildlife or listed species (Christy 1988).

Even though compensation for such injuries is not constitutionally required, recovery
programs for ESA-listed species such as the gray wolf sometimes have included landowner
compensation funds provided by Congress, state legislatures, or nonprofit groups interested in
the species' recovery.

Proposals to amend the ESA to more broadly mandate compensation to affected
landowners so far have not been enacted. Neither have similar proposed amendments to the
federal CWA or proposed general federal legislation on landowner compensation rights such as
1997 House Bill 1534, 1991 House Bill 95, 1996 Senate Bill 1954, or 1995 House Bill 925, which
only the House passed.

Several states have enacted landowner compensation laws that are more generous than
the judicial rules summarized above. In the Pacific Northwest, however, similar state
compensation legislation has been defeated: In Washington State, voters rejected a referendum
by a 2-1 margin in 1995, and in Oregon, Governor John Kitzhaber vetoed a bill, also in 1995.
The 1997 Oregon and Washington legislatures considered similar legislation but none was
enacted.

Thus the judicial compensation rules summarized above continue to be generally
applicable to compensation issues raised by government actions taken in support of salmon
recovery, such as new restrictions on the exercise of previously recognized rights regarding
irrigation water diversions. Nationally, courts have found potential violations of water users'
Fifth Amendment compensation rights in two disputes, neither involving the recovery of ESA-
listed species. State legislation limiting the future exercise of riparian water rights by riverbank
owners was struck down in Oklahoma (Franco-American Charolaise 1990), and serious Fifth
Amendment questions were raised about judicial restrictions on continued irrigation diversions
in Hawaii (Robinson 1985). More relevant to restoring stream flows in support of salmon
recovery is a recent Washington Supreme Court decision upholding against a Fifth Amendment
challenge of a referee's decision to reduce an irrigator's diversions due to the wastefulness of the
irrigation system used (State 1993).

In support of ESA-listed salmon recovery, other recent decisions have upheld, without
directly addressing Fifth Amendment issues, uncompensated alterations of Bureau of
Reclamation water delivery contracts (Madera Irrigation District 1993; Natural Resources
Defense Council 1997) and reductions in diversions due to inadequate fish screens (United
States 1992). California courts have applied the public trust doctrine to reduce diversions to
achieve fish and fish habitat benefits without compensation (Mono Lake Water Rights Cases
1991; United States 1986). The federal navigation servitude also is relevant to water rights
compensation questions (Hildreth, Dahlstrom &;Wilde 1998).

Property rights advocates have made some gains in the nation's courts and legislatures.
Still, under the evolving legal framework, landowner compensation for regulations protecting
habitat is required in limited, fact-specific circumstances identified after relatively complex
litigation. The legal trends do suggest that impacts on landowners should be carefully identified
and compensated as appropriate and feasible. Therefore, beyond the intangibles of community
recognition, public, nonprofit, and private monetary benefits provided to landowners who
undertake habitat protection will continue to play a key role in encouraging landowner
cooperation (Polaskey, Doremus &;Rettig 1997; Polaskey &;Doremus forthcoming). An
example of a publicly financed incentive is the funding sought by Governor Kitzhaber's staff in
January 1998 under the federal Conservation Reserve Enhancement Program. Landowner
perceptions of what is fair treatment may well have expanded due to these legal trends.

III. Coastal Coho Salmon Recovery

Jim Martin, coordinator of Governor Kitzhaber's Coastal Salmon Restoration Initiative,
estimates that around 1900 there were an average of 1.6 million annually migrating wild coho
salmon returning to the Oregon coast south of the Columbia River and north of California. But
by the 1990s, annual returns of wild coastal coho have numbered below 100,000. Winter 1996
spawning counts indicated a near record low of 39,000 wild spawners.

Coho runs on 55% of their former habitat are now extinct. Multiple petitions were filed
with NMFS to list the remaining West Coast coho salmon species as threatened or endangered
under the federal ESA. In July 1995 NMFS proposed listing Oregon and California coho salmon
as threatened, but so far only central California (61 Federal Register 59028 (1996)), northern
California, and southern Oregon coastal coho have actually been protected with a threatened
listing, critical habitat designation, and regulations issued under ESA section 4(d) (Federal
Register 62741 (1997)). Environmental and fishing groups have filed suits in federal district
court challenging the legal bases of NMFS's April 1997 decision to not list Oregon coastal coho
north of Cape Blanco, which NMFS views only as a "candidate species" for listing pending
implementation of the OCSRI (Oregon Natural Resources Defense Council 1997).

In the meantime, the PFMC has drastically reduced commercial and recreational coho
fishing in federal waters beyond three nautical miles off northern California, Oregon, and
Washington. The states have adopted similar restrictions for state coastal waters extending
three nautical miles seaward. Millions of dollars in federal compensation have been allocated
to individuals and entities adversely affected by these decisions. Even with wild coho harvest
largely eliminated, successfully responding to the decline of coastal coho is one of the West
Coast's most challenging sustainability issues; it involves watershed land use changes, habitat
loss, water quality degradation, and the impacts of these factors on an important marine
resource, thus crossing traditional jurisdictional boundaries.

The legal and physical circumstances of coastal coho are quite different from those of the
Columbia-Snake River salmon, due to the absence of large hydroelectric dams as a principal
factor in coastal coho decline and recovery (Harrison 1993). Coastal coho recovery implicates a
wide variety of coastal resource uses beyond the commercial and recreational fishing sectors
that have borne the brunt of initial actions taken in support of recovery.

The principal factors in West Coast coho salmon decline include overfishing, adverse
ocean conditions, hatchery operations, and freshwater and estuarine habitat deterioration due
to forestry, agriculture, and urbanization (Botkin et al. 1995). Habitat alteration in coastal
watersheds appears to be a major factor in the decline of coastal coho. The mix of public and
privately owned resources in coastal watersheds complicates the implementation of coho
recovery actions. Existing federal, state, and local resource management laws have not been
sufficient for preventing the decline, and some factors such as adverse ocean conditions are, for
the most part, beyond the control of the relevant legal systems. For other factors such as
habitat deterioration, however, changed laws and improved implementation and coordination
appear to be necessary, if not necessarily sufficient, conditions for coastal coho recovery.

The long-term decline of coastal coho populations correlates with the deterioration of their
freshwater habitat caused by human disturbances. Coho are especially vulnerable to the loss or
degradation of their freshwater spawning, summer rearing, and winter rearing habitats. Coho
habitat is lost when large woody debris and the stable, complex channels and wetlands
associated with floodplain forests are damaged or destroyed by logging, grazing,
channelization, crop land agriculture, or urbanization. Sedimentation, debris flows, and
increases in stream temperature can result from the disturbance of headwater areas by logging
roads and timber harvests. Flow diversions for irrigation and power generation also can cause
serious problems for coho.

At least 12 different federal agencies operating under different statutory mandates have
water management responsibilities in watersheds. At the state level, 16 agencies are involved in
managing watersheds in Oregon, and the figures are similar for California and Washington.

Local governments are significant players in watershed management as well. However, a
1994 U.S. Supreme Court decision appears to impose major information gathering and analysis
obligations on local government agencies that regulate private land uses adversely affecting
watershed conditions, at least in cases where the local government attempts to impose public
access requirements on the landowner (Dolan 1994). Federal courts have required
compensation payments to some landowners who were denied permission to fill wetlands on
their property (Florida Rock Industries 1994). On the other hand, other federal and state court
decisions have been quite supportive of aggressive federal and state agency implementation of
CWA, ESA, and other obligations to protect watershed water quality.

The relevance of the legal framework outlined above is illustrated by the key concept in
coho recovery, namely, riparian zone protection and restoration. According to Oregon State
University (OSU) Professor Stan Gregory,

riparian, or streamside, zones have recently emerged as key areas of consideration in the forest ecosystem management discussion because such zones are critical to maintaining the water quality, temperature, and food bases of streams. One of the
challenges to be faced regarding riparian zones is that they almost always span
across public and private lands, yet the entire length of the riparian zone bordering a stream must be managed in order to maintain the health of that stream [Bruce 1993, 21].

Thus, of the many factors contributing to the coho's decline, it is the factor of habitat
deterioration for which Oregon Sea Grant­supported work at the Ocean and Coastal Law
Center has emphasized legal remedies. This work has focused on coastal estuaries and their
watersheds (Goldfarb 1994; Healey &;Hennessey 1994) and, at the federal level, on relevant
aspects of the CWA section 404 permit program controlling waterway and wetland alterations
and the evolving nonpoint source pollution control programs (Burroughs 1993; Hildreth, Brown
&;Shavelson 1993). Legal remedies at the state level include state laws and programs
implementing the foregoing federal laws, for example, state certification of federal compliance
with state water quality standards under CWA section 401 (American Rivers 1997a; City of
Klamath Falls 1994), state water allocation laws (Clyde 1989; Tarlock 1995), and state forest
and agricultural practices laws protecting watershed water quality and riparian zones. Also
included are relevant judge-made rules such as the public trust doctrine (Hildreth 1993) and
private and public nuisance law.

Approaches emphasizing cooperative public-private management and incentives for
private actions in support of coho recovery should be considered in addition to traditional
command-and-control regulatory remedies. Such approaches include cooperative estuary and
watershed management, incentive payments or tax reductions to private landowners who take
steps to protect and restore riparian habitat, and mechanisms for funding those alternatives.

Governor Kitzhaber's natural resources staff put together the OCSRI for the purpose of
avoiding an ESA listing of northern and central coastal Oregon coho as threatened. The
initiative is a combination of voluntary cooperative restoration efforts, such as the local coastal
watershed councils established and funded under 1993 and 1995 state legislation, and beefed-
up state regulatory programs, such as the state Water Resources Department's (WRD's) review
of pending water diversion applications involving the north, middle, and south coast and the
Rogue and Umpqua River Basins. This case-by-case review was carried out to identify
potential impacts on both coastal coho and steelhead populations and was performed as part
of the existing WRD public interest review of diversion applications. The WRD also is
developing amendments to those review criteria for sensitive, threatened, and endangered fish.
In the spring of 1996, as the OCSRI was being assembled, the governor intervened to limit
railroad repairs along the coastal Salmonberry River in order to prevent interference with the
spawning activities of one of the state's healthiest steelhead runs.

In 1997 the Oregon legislature enacted laws to implement and fund the initiative and
established a Joint Legislative Committee on Salmon and Stream Enhancement. Critical to the
initiative's success will be (1) support from future Oregon legislatures in the form of needed
statutory amendments and continued funding for agency implementation efforts and local
watershed councils; (2) citizen monitoring of the implementation of the governor's program; and
(3) federal agency cooperation, which is more difficult to achieve outside the ESA framework.

Given the ESA-driven recovery experiences to date for listed Columbia-Snake River
salmon, Umpqua River cutthroat trout, and southern Oregon and northern California coastal
coho, one could argue that the failure to list northern and central Oregon coastal coho does not
significantly decrease the probability of success for recovery efforts. However, the enforceable
recovery requirements provided by an ESA listing, but which are missing from the OCSRI, 1997
Oregon Senate Bill 924 and 1997 Oregon House Bills 3700 and 5042 implementing the OCSRI,
and the accompanying federal-state Memorandum of Agreement (MOA), include

1. ESA section 7 obligations for federal agencies to not jeopardize endangered species
or their designated critical habitat (Pacific Rivers Council 1996);
2. ESA section 4(d) regulations protecting threatened species; and
3. ESA section 9 prohibitions on "takings" of listed species, including seriously
damaging their habitat (Loggerhead Turtle 1995; Strahan 1996; United States 1992).

These ESA provisions still could become directly applicable to northern and central
Oregon coastal coho recovery if NMFS decides that an ESA listing is merited because the OCSRI
is not working or if pending litigation invalidates NMFS's failure to list. Even without an ESA
listing, however, implementation of the voluntary and cooperative efforts emphasized by the
OCSRI will take place against a backdrop of legal and policy initiatives that are supportive but
quite different from those developed in connection with Columbia-Snake River salmon recovery.
The balance of this memo focuses on that legal and policy framework, beginning with overviews
of the OCSRI, the 1997 Oregon statutes, and the federal-state MOA implementing the OCSRI.

IV. The Oregon Coastal Salmon Restoration Initiative (OCSRI)

Native populations of salmon, steelhead, and cutthroat trout are currently struggling to
survive in the face of heavy development and harvesting of natural resources. Most of these
populations are unhealthy, some so much so that they are bordering on extinction (and, of
course, some populations have been extinct for some time). The remaining populations are
approaching a level from which species recovery will not be possible (State of Oregon 1997a, 2-
3).

These problems have existed for quite some time, and the state of Oregon has not been
blind to them. In the past few years, there have been a variety of restoration plans designed
and implemented to halt the degradation of salmon populations and habitat, but, quite clearly,
these have not been sufficiently effective to mitigate the damage being done to salmon
populations and habitat. If restoration efforts are not successfully implemented now, these
salmon populations will no longer swim in Oregon's waters and provide their many
irreplaceable benefits to the state and its people.

The OCSRI was created because of the impending disaster of coho salmon extinction.
NMFS had been considering recommending that coho stocks be listed as threatened under the
ESA. This listing would have allowed the federal government to exert substantial control over
the management of Oregon's natural resources. The state, wanting to retain autonomy over its
natural resources, offered the OCSRI to NMFS in hopes of staving off a listing under the ESA.
This offering has been officially accepted by the federal government in the MOA between the
state of Oregon and NMFS.

As will be detailed further below, the OCSRI is based on a set of approaches‹ranging
from the overall conceptual foundation to the way in which actors within the initiative
interact‹that is different from those of past efforts. It is a revolutionary and wide ranging
response to a century of decline in salmon stocks and salmon habitats.

V. The Federal-State Memorandum of Agreement (MOA)

To ensure that the state is accountable for the health of the coho salmon stocks, the state
of Oregon and NMFS have created an MOA. In this agreement the two entities establish the
terms and conditions for their collaboration and express their awareness of their obligation to
alter the OCSRI as needed, thus leaving the OCSRI to focus on protecting habitat capacity for
coastal salmonids and raising the quality of the habitat back to historic levels.

NMFS retains the right to change the ESA status of the coastal coho if it determines that
the OCSRI or any other conservation efforts are not sustaining the Oregon coastal coho (MOA
1997, 3). NMFS will "endeavor" to provide the state with notice if it is considering such a
change. This dynamic demonstrates how important it is for the state and other actors to
quickly and effectively implement the measures of the OCSRI. One way in which NMFS will
stay abreast of OCSRI developments is through NMFS representation on the many task forces
that exist under the OCSRI, including the Salmon Strategy Team, the Implementation Team, the
Science Team, and the Outreach Team.

Under the MOA, Oregon must confer with NMFS in developing standardized watershed
assessment guidelines. NMFS has final say in whether these guidelines are adequate (MOA
1997, 8). This means that the state's activities within the watersheds will be limited by NMFS-
controlled assessment guidelines. Success in this area will depend on the effectiveness of the
local watershed councils. From the state's perspective, one potential weak point in the MOA is
that many of these councils are not yet formed. Furthermore, effective performance of the
existing councils has not been proven, particularly with regards to the increased duties required
by the OCSRI. In Oregon there are agencies other than the watershed councils that are currently
working in the area of watershed assessments, and the state may have to rely on these actors
more heavily than anticipated in order to satisfy NMFS's requirements. Because the state,
under the MOA, must consider NMFS's input in developing guidelines for restoration activities,
NMFS clearly could have a strong influence over restoration guidelines and thereby affect the
immediate and long-term application of the OCSRI.

The agreement requires that the state strengthen or clarify restoration measures in such key
areas as forest practices, agricultural practices, flow protection and restoration, designation of
core areas, and gravel removal. NMFS also will have a hand in water quality, flow control, and
fishery management measures. The strength of NMFS's position in the agreement is particularly
evident in the language dictating changes in forest practices. NMFS may propose, at any time,
additional modifications to forest practices that it deems necessary for the protection of coastal
coho (MOA 1997, 9). Such proposals are to be made to the Oregon Board of Forestry (OBF) or
to the Oregon legislature. The state must consider the proposals promptly and institute any
needed changes, a process that could involve new laws, rules, or protection programs.
Furthermore, "NMFS intends to participate actively in state administrative and legislative processes
to address proposed changes, and assure that timely progress is being made" (MOA 1997,
9­10) (emphasis added).

The particular areas covered in the agreement are now discussed more fully.

A. Forest Practices

The state is having some trouble in dealing with forest practices issues. There are
powerful, determined parties in Oregon's industry and conservation groups with strong and
often conflicting opinions about how the forests should be managed. Timber interests, while
perhaps initially wanting to cooperate with salmon restoration efforts, may not be so
accommodating as to weaken their industry and livelihoods too much.

Such reluctance has been demonstrated in the face of NMFS's recent evaluation of
Oregon's logging rules. NMFS commissioned three independent panels of scientists to examine
the OCSRI and the forestry rules that apply to private Oregon lands. The scientists found four
main areas for concern:

1. Stream protection buffers of 50 to 100 feet, as called for by the state, are insufficient
(federal officials recommend buffer widths of 150 to 200 feet);
2. State forestry rules do not prohibit logging on potentially dangerous slopes, thereby
increasing chances for landslides that will pour sediment into streams;
3. Fifty-year harvest rotations will not allow trees to grow large enough to provide large
woody debris or to develop the complex root systems that anchor soil; and
4. The guidelines for watershed councils do not provide for analyses of watershed health
that would enable the councils to better direct their efforts and evaluate project results (Jewett
1998).

These findings mean that the state of Oregon must consider changes in its logging rules; the
findings also clearly show that both the OCSRI and the state must continue to strengthen certain
measures if salmon restoration is to be achieved.

Timber industry representatives were "furious" at the panels' findings, claiming that
satisfying the federal recommendations on buffers would amount to a confiscation of private
land and that other factors for decline, such as agriculture and urbanization, are not having to
share the burden of salmon restoration (Jewett 1998). The timber industry appears to have
reached a point where it is not inclined to cooperate voluntarily with the state's efforts. This
shows a breakdown in the OCSRI's voluntary aspect and in its coordinated, team approach
and is illustrative of the problems that the OCSRI may have in the future. Similar situations will
arise, to varying degrees, repeatedly throughout the implementation of the OCSRI and its review
by federal authorities.

The OBF has established new rules for forest management policy and planning under the
Forest Practices Act. While the rules naturally focus on deriving maximum economic benefits
from the forests, they do contain safeguards designed to protect a wide variety of forest
resources, including salmon and other fish. The OBF is confident that it will be possible to
achieve the "greatest permanent value" (GPV) of the forest lands while also maintaining and
restoring properly functioning habitats for salmon, other fish, and other species (Oregon
Administrative Rules (OAR) 629-035-0010). One of the criteria that must be satisfied in
achieving the GPV is the maintenance of these habitats. The OBF is authorized to acquire forest
lands not only for the purpose of continuing to provide forest products and but also for the
purpose of achieving watershed protection and development (Jewett 1998). This could be
seized by the OCSRI as a tool for obtaining better protection for riparian areas and other
salmonid habitat.

Although the new forest management policy rules do offer reason for hope, they also
contain some language that could cause problems for the OCSRI. For instance, while one of the
stated goals of the forest management policy is maintenance and restoration of habitats,
management of forest conditions must have only a "high probability" of maintaining and
restoring these habitats (Jewett 1998; see also OAR 629-035-0030). This appears to provide
room for a lot of discretion and for allowing mistakes to occur in forest management. Another
drawback is that the OBF only is required to review forest management plans "no less than
every ten years" (OAR 629-035-0300). Considering the coho populations' critical condition,
reviews should be performed more frequently.

Monitoring of forest practices is primarily the responsibility of the Oregon Department of
Forestry (ODF). The ODF runs a program that monitors the Forest Practices Act and the
implementation of best management practices on state and private forest lands. The program
focuses on sediment and temperature monitoring, assessment of flood effects, and evaluation of
riparian management measures (State of Oregon 1997a, 16-27). The ODF proposes additional
funding for increased levels of OCSRI-related assessment and monitoring activities on state
forest lands. However, the ODF's budget does not appear to cover increased monitoring of
private forest lands. The OCSRI does not even identify how much monitoring is currently being
done on those private lands. At this point, the OCSRI seems to rely on the voluntary assistance
of private actors to control activities on private forest lands. The obvious problem with this is
that not all landowners will be willing to cooperate of their own goodwill. Stronger incentives or
measures may be required, particularly if the coho salmon populations decline further.

Roads contribute to accelerated erosion, and the consequent increase in sedimentation
results in much stream degradation. The forest practices program does have rules dealing with
existing roads, and while some of the program is voluntary, there also is a road assessment
protocol and monitoring program in place to track implementation of appropriate measures.
New ODF rules designed to prevent landslides resulting from roads and timber harvesting are
under study.

On federal forest lands, the level of riparian protection is relatively high, with 300-foot-
wide buffers required for fish-bearing streams. For state and private forest lands, this
protection is not as strong and consistent, although the ODF does administer several programs
that are aimed at reducing excess sediment supply. Buffer widths have been an inflammatory
issue in Oregon, but, as far as the health of salmon is concerned, the wider the buffer, the better.

The OCSRI anticipates the development of a monitoring strategy that will examine the
cumulative effects of the factors for decline as well as provide a method for watershed
assessment. This watershed assessment will "gather information that can evaluate the
magnitude of the various factors for decline, assess limiting factors, identify habitat trends, and
identify and prioritize restoration opportunities"(State of Oregon 1997a, 16-28). Essentially,
the program will assess how the watersheds are holding up and why they are in their particular
states of health. The parties involved in designing this strategy are OCSRI monitoring staff,
Governor's Watershed Enhancement Board staff, federal agencies, OSU, watershed councils,
and other interest groups. Industrial and other private landowners have participated in
watershed assessments in the past and are expected to do so in the future.

B. Agricultural Practices

Under the MOA, the Oregon Department of Agriculture (ODA) addresses the effects of
agricultural practices such as animal feeding operations and the logical corollary, animal waste,
on water quality. Much of the ODA's authority in this area comes from 1993 Oregon Senate Bill
1010. Water quality management plans developed under this law will address factors relating
to physical habitat and riparian functions (particularly through the prohibition of harmful
agricultural activities and the protection of streambanks), as well as the chemical parameters of
water quality. Successful implementation of these plans will help coastal watersheds meet
state water quality standards for temperature, chemical criteria, antidegradation, and biological
conditions. One important note is that while Senate Bill 1010 does not mandate restoration to
natural conditions, it does provide a high level of certainty that improvements will occur.

The ODA has programs for improving riparian conditions over the current baseline for the
majority of non-forested lands, including prohibitions of agricultural activities that prevent
riparian function. The ODA programs, however, do not require a buffer along streambeds,
allowing farmers and ranchers flexibility in how they manage riparian areas to best achieve
water quality objectives and protect beneficial uses. To some extent this leaves the protection
of riparian areas to those whose livelihoods might be harmed by the requirements for such
protection.

C. Water Quantity

Water quantity, fish passage, and fish screening (keeping fish out of water diversions) are
major components of the OCSRI habitat restoration effort. Reduced flows provide less habitat
for fish, resulting in increased aggression, competition, or predation, and they also cause
increased water temperature and other water quality problems.

Water rights are distributed on the basis of priority date (seniority), that is, the actor with
the older water right can demand as much water as he is due. Holders of more recent water
rights must make do with what is left. In 1987, a law was passed to allow the state to create
instream water rights. However, because there are so many out-of-stream water rights that are
senior to these new instream rights, the desired instream flow levels frequently are not achieved.
The most senior water rights generally belong to agricultural actors, not to environmental or
conservation interests. Strict enforcement of current regulations, coupled with acquisition of
surplus water rights, could bring the state to within the flow parameters set by NMFS.

D. Fisheries Management

In the MOA, NMFS agrees to allow current OCSRI strategies to be sufficient but requires
that post-2000 strategies be subject to NMFS review and concurrence (MOA 1997, 11). In light
of the present grievous condition of salmon stocks, it is easy to believe that, no matter how
effective the OCSRI is, the salmon stocks probably will not have recovered sufficiently by the
year 2000 and that the post-2000 strategies, particularly after review by NMFS, will continue to
cut coho salmon harvest down to almost nothing. Nonetheless, it seems likely that the state will
satisfy NMFS harvest requirements, since it has demonstrated a willingness to do so up to this
point. Furthermore, there is wide recognition that irresponsible harvesting contributes to the
destruction of the resource, and this awareness will result in broad support for Oregon's
limitations on salmon harvesting, thereby aiding the state in fulfilling its obligations to NMFS.

E. Hatchery Practices

Under the MOA, the state has a relatively free hand in managing hatchery practices. This
may be due to the low emphasis that the OCSRI places on hatchery activity as a practice in
general and as a strategy for recovery in particular. The OCSRI does include measures for
modifying hatchery practices to supplement wild populations, even though it is recognized that
hatchery programs can be dangerous to wild stocks and must be managed with extreme care
and foresight. Modifying hatchery practices may become more successful as additional data
and knowledge are acquired.

F. Independent Multidisciplinary Science Team (IMST) and the Monitoring
Program

Another important element of the MOA, and of the OCSRI as well, is the Independent
Multidisciplinary Science Team (IMST). The Oregon legislature established the IMST through
1997 Senate Bill 924, stating that it would consist of "up to seven scientists with recognized
expertise in fisheries, artificial propagation, stream ecology, forestry, range, watershed and
agricultural management." Seven scientists from federal and state agencies, OSU, and a private
consulting firm were appointed to the IMST in October 1997. Under the MOA, the IMST will
review the freshwater habitat needs of the salmon and the dynamics therein. The existence of a
science-based peer review of habitat measures and implementation was very important to
NMFS in making its listing decision, and the OCSRI and the Oregon legislature have striven to
create an entity that can perform this role. There will be general cooperation and coordination
between NMFS and the state in analyzing the decline of the coastal coho, and the IMST will
serve as a review board for both parties (MOA 1997, 7).

The OCSRI contains measures for implementing an adequate and effective monitoring
program. The monitoring program will examine the effects of the OCSRI measures on salmon
populations and habitats and contribute to achieving accountability among the OCSRI actors.
Ideally, these efforts will identify any problems and who is responsible for them.

Monitoring will be conducted at the levels of regions, sub-basins, watersheds, and sites. In
addition, monitoring will occur at the level of the Gene Conservation Group (GCG), which is
both a geographic and a population designation and represents the fundamental level of
organization of salmon stocks. The GCGs in Oregon represent an important subdivision of the
range of coho in the state; they also form realistic management units.

The IMST will shoulder much of the burden when it comes to compiling and interpreting
the monitoring data collected under the OCSRI monitoring program. Utilizing the results of the
monitoring program and the implementation review, the IMST will be largely responsible for
aiding (and influencing) the state in adapting and modifying the OCSRI in order to reach peak
efficiency and effectiveness.

Fortunately, many of the tasks required of the monitoring program are already performed
by established programs. Unfortunately, the comprehensive monitoring program that feeds the
IMST relies heavily on the cooperation and coordination of many state, federal, and private
entities; effective management of these groups will require shrewd and strong leadership.

G. Role of the MOA

NMFS has examined the OCSRI and given its conditional approval of the plan through the
MOA. If the OCSRI is implemented effectively, the demands placed on the state by the
agreement certainly can be satisfied. However, salmon restoration under the OCSRI is a huge
project, requiring that a multitude of wide-ranging projects be successfully executed. This
project is not just a matter of reintroducing a species to an area and then simply leaving the
animals to breed themselves back to a sustainable population, as has been done for some
species restoration programs. Rather, it is a matter of restoring, at a regional level, an entire
ecosystem, one that is very much intertwined with the economy and the people of Oregon.

VI. Elements of the OCSRI

The OCSRI has three major procedural elements that are designed to ensure the successful
short-term restoration of salmon populations and habitats and long-term sustenance of those
populations.

First, the OCSRI places a tremendous emphasis on interagency cooperation, at both the
state and federal levels. It has been speculated that a great contributor to the failure of earlier
plans was the lack of cooperation between various agencies and actors (State of Oregon 1997a,
5-7, 5-9); the efforts of different agencies overlapped or directly interfered with one another.
Recognizing the key importance of communication and cooperation in building strong and
lasting local-state-federal partnerships, the OCSRI hopes to avoid repeating these failures by
emphasizing that the agencies and actors involved must be aware of the activities of others and
must work to supplement each other's efforts. Cooperative, coordinated management will be
necessary for achieving the OCSRI's population and habitat goals.

Second, the OCSRI intends to make strong efforts in the area of public outreach and
education. It has been suggested that past restoration or conservation plans failed partly
because the public was not a participant in the restoration efforts (State of Oregon 1997a, 5-
11). The OCSRI intends to inform the public about the problems, issues, and motivations
involved in salmon restoration efforts. It also will seek input and volunteer assistance from the
public in accomplishing some of the plan's elements. Community participation in the watershed
councils is but one way in which this will occur. A public that is informed of the issues and
involved in the plan's programs are likely to be more accepting of the measures required to
successfully restore salmon populations in Oregon.

Third, the OCSRI has been designed to maintain a flexible, evolving format that will allow
the OCSRI to accommodate any changes made necessary by the gathering of new information.
Because science moves forward constantly, and because what may have been believed
yesterday may be proven wrong tomorrow, the OCSRI must be structured in such a way that it
is able to recognize when it is working with out-of-date assumptions and beliefs. Once such
recognition has occurred, the OCSRI must be in a position to alter its programs on the basis of
new scientific data in order to be as efficient and effective as possible. The state would like the
OCSRI to continue to evolve as a strategy by taking advantage of advances in science and
technology. Programs and policies within the OCSRI are designed to ensure that this occurs.

The OCSRI puts forth a number of overarching, yet connected, salmon habitat and
population goals. Much of the OCSRI is directed toward the goal of habitat restoration and
maintenance. The OCSRI intends to improve instream habitat, thereby providing salmon with a
natural and supportive environment in the water bodies themselves. Similarly, the OCSRI aims
to improve estuarine habitat‹that area connecting freshwater bodies to the ocean. It will be
necessary for the OCSRI to direct restoration measures also at the riparian habitat associated
with the instream habitat. Thus the OCSRI will improve streamside vegetation, riparian
canopy, and the general environment.

As part of its goal to improve and maintain salmonid habitat through the OCSRI, the state
will make substantial efforts to improve the health and general condition of the watersheds
contributing to salmonid habitat. Watershed health broadly impacts both instream and
riparian habitats, since most of what occurs within a watershed‹for example, road building
and sewer lines‹influences these other habitats. The OCSRI will attempt to ensure that the
activities in the watersheds that are affecting salmon habitat will be conducted in ways that are
not detrimental to that habitat. It is hoped that other species will benefit incidentally from this
broad watershed approach to habitat restoration. The watershed approach may make it easier
to incorporate restoration efforts for other species, as evidenced by the steelhead supplement to
the Oregon Plan (State of Oregon 1997b). In fact, it is expected that the "coho and steelhead
plans will begin to 'morph' into an overall species protection plan" (Gillaspie 1997, 3).

The specific goals and areas of concern of the OCSRI are discussed next.

A. Salmon Population Goals

The OCSRI intends to implement measures that will cause salmon populations in coastal
river basins to reach levels of natural production that are consistent with overall restoration
goals. One of the obvious strategies for doing this is to ensure that enough salmon return from
the ocean environment to the coastal streams for spawning. Recently, the PFMC and the
Oregon Department of Fish and Wildlife (ODFW) eliminated almost all directed coho harvest,
and harvest management will continue to be one of the more important means of controlling the
level of salmon population. One of the long-term goals of the OCSRI, however, is to return coho
salmon populations to a level that permits sustainable harvesting, allowing the state to once
again utilize salmon as a regular economic and recreational resource. Achieving this goal will
require that the populations reach a point where the ODFW does not have to restrict coho
harvest, or at least does not have to reduce harvest to almost nothing. The OCSRI has
established a timetable for identifying when populations should reach the desired level of
spawner restoration. This timetable, like every aspect of rebuilding salmon populations, is
extremely vulnerable to excessive variations in the environment and climate, and it will largely
depend on the favorability of ocean survival rates. Through 1997 Senate Bill 924, the Oregon
legislature has continued the Coastal Salmon Restoration and Production Task Force, and this
task force will focus on restoring salmon to a point where their population levels can support
sustainable harvest.

The ODFW will review the factors of harvest impacts (of both ocean mixed stock and
terminal fisheries targeted on hatchery fish) on Oregon coho stocks so that the collective
impacts of the factors for decline do not prevent the OCSRI from reaching its timetable targets
regarding spawner escapement (State of Oregon 1997a, State Agency Measures, Fish
Management, 17B-2). The agency will maintain the current closures of directed coho harvest
and further develop fishery management approaches to limit coho harvest impacts. In an effort
to protect wild runs, this will apply to the stocks of most coastal rivers and estuaries as well as
to the ocean stocks.

One of the most important aspects of future fishery management practices is the
breakdown of the total natural coastal coho population into four units. This will allow
different units to be managed according to the strength of their particular populations rather
than under the assumption that one coho stock is equally as stable as any other stock off the
Oregon coast (State of Oregon 1997a, State Agency Measures, Fish Management, 17B 4).
Future management of the fisheries was a very important issue for NMFS in its evaluation of the
OCSRI and the status of coho salmon, and NMFS considered ODFW's "Proposed Spawner
Escapement Goal and Fishery Management Regime" to be a key element.

The OCSRI makes an important distinction between wild coho stocks and hatchery
stocks. The plan aims to develop future fisheries management measures that will not interfere
with the restoration of wild coho stocks. One method of doing this is the external marking of all
hatchery coho. This will aid in the development of selective ocean fisheries and terminal
fisheries targeted on hatchery fish, and in the monitoring of hatchery fish behavior. The ODFW
will explore the possibility and methods of targeting hatchery stocks in an effort to reopen those
ocean fisheries that can be managed in this fashion‹that is, those fisheries for which it is
feasible to harvest the hatchery fish while avoiding the wild stocks.

While there has been a near-total elimination of the harvest of coho in the ocean
fisheries, some coho are still lost due to incidental catch. Coho often do not survive being
hooked and released, and the OCSRI includes provisions for achieving a decrease in the
mortalities caused by incidental catch. This will involve ODFW studies on hook and-release
mortality rates by gear type and on the effectiveness of selective fishery gear in targeting single
species. The goal is to identify gear and fishing techniques that are effective in harvesting
specific species, but which, at the same time, will not result in the incidental catch of coho
salmon stocks.

B. Habitat Goals

As compared to past plans, the OCSRI takes a different approach toward habitat
restoration. Its conceptual foundation embraces a holistic approach toward restoration that is
broader and less reliant on technology and science to solve the problems of habitat degradation,
many of which were caused by technology and science. The OCSRI can best be described as
having a natural ecosystem approach toward restoration because it considers the full range of
attributes of aquatic health and the entire ecosystem as a whole. The OCSRI stipulates that
factors for decline within that ecosystem will be identified and that restoration efforts will then
focus on those factors. At the same time, every habitat aspect of salmonid life history will be
examined and considered. Overall ecosystem health, not individual battles over specific factors
for decline, is the key.

Nondegradation of existing habitat is a very important area of concern in water quality
management. The OCSRI includes strong measures to preserve habitats that are currently doing
well, and federal agencies will contribute to protecting areas of high water quality through their
responsibilities for meeting state water quality standards for core areas on federal lands. These
strong measures notwithstanding, the OCSRI aims to retain enough flexibility to allow for some
minor degradation to occur for reasons of public health and safety, for improvements to
habitat, or in those stream reaches where no adverse effect on salmonids will occur. This
reference in the OCSRI (State of Oregon 1997a, State Agency Measures, Water Quality, 17B-10)
implies that there could be quite a few loopholes in this regard‹loopholes that could lead to
significant habitat degradation, despite the plan's intent. The Oregon EQC, for example, has
explicit power to allow a lowering of water quality in high-quality waters if it finds that certain
criteria or circumstances exist. In cases such as this, economic and social needs are deemed to
outweigh environmental needs.

One resource on which the OCSRI can rely, if necessary, is the Outstanding Resource
Waters Policy. Under this policy, the Oregon EQC could designate core areas for protection
and thereby potentially further restrict activities in designated watersheds. State and federal
agencies, as well as private actors, would have to follow these restrictions. The OCSRI does
note that this might unfairly restrict the activities of some landowners who are located near core
areas. The OCSRI claims, however, that use of the Outstanding Resource Waters Policy should
not be necessary because the ODA, the ODF, and other agencies already have the responsibility
of protecting these waters from degradation.

Based on a review of the literature, on the professional judgment of state agency staffs,
and on the advice of NMFS staff, the OCSRI has identified the key physical habitat factors for
decline. These include larger stream shade, smaller stream shade, pool area, pool frequency,
gravel availability, gravel quality, large woody debris places, large woody debris volume, and
large riparian conifers. As there are different views about the value and application of the
different factors, there may be some discretion used in prioritizing the habitat factors and in
assessing the adequacy of any particular measure. It will be important to ensure that discretion
involving habitat factors is not misused or misapplied to further specific interests.

In many coastal streams, human activities have simplified or otherwise modified channel
complexity, braidedness, and interconnection with the floodplain, to the detriment of
salmonids. Because juvenile coho salmon have a body shape that is not well suited for
swimming in fast water, they require slow water and backwater habitat during the winter
months. Indeed, in winter, the highest coho density is found in the slow water areas. Complex
channels have both slow water and fast water, providing the necessary habitat for young coho.
Streams that have been cleared of debris and wood for one reason or another tend to lack
complexity. Surveys show that, although the amount of pool habitat is relatively good in such
situations, the complexity of that habitat has been reduced due to the depletion of woody
debris (State of Oregon 1997a, Physical Habitat, 17B-22). Fortunately, the storms and flooding
of the last few years have provided much large woody debris to Oregon coastal streams.

Human activities in many of the state's coastal streams also have resulted in the loss,
redistribution, simplification, burial, or other modification of streambed particle size and
distribution, again to the detriment of salmonids. Increases in stream substrate sediment
supply and changes in routing dynamics potentially can have detrimental results. These include
channel instability and widening, pool filling, and the intrusion of fine sediment into coarser
particle beds, all of which decrease aquatic insect production and possibly the egg-to fry
survival rate of salmonids. Stream cleaning activities, on the other hand, can lead to the loss of
large roughness and eliminate all substrate in channel beds. Waterbody substrates are very
fragile structures, and great care must be taken when attempting to mitigate the factors for
decline, as such efforts could have the opposite effect.

With regards to physical habitat restoration needs, the OCSRI focuses on more than just
channel morphology. Human activities in coastal streams have resulted in the loss of instream
roughness elements, including boulders and large woody debris, and this loss negatively affects
both the quality and quantity of anadromous fish habitat. Large woody debris and other
elements of channel roughness are key factors in the development of channel form, aspects of
which include off-channel rearing backwaters, side channels, and pools and riffles that are
important for salmon. Large woody debris also provides cover and "territories" for smolts and
aids in the winter survival of these smolts.

Reductions in woody debris will often result in habitat simplification, but this
simplification does not always result in a decline in total fish productivity. Fish of certain
species and age classes may increase in numbers as they occupy space vacated by fish of other
species or age classes for which the habitat simplification was detrimental. However, overall
increase in the productivity of the basin is undesirable if particular species of fish, such as coho
salmon, are lost entirely. It is not yet clear what the optimal amount or size of large woody
debris is.

The OCSRI has four objectives for resolving instream roughness issues. It aims to (1)
identify the levels of instream roughness necessary to support healthy salmonid stocks in all
coastal streams by 2001; (2) ensure that existing programs do not allow the present day (1997)
instream roughness elements important to salmonids to be modified or removed by human
activities; (3) ensure that any instream roughness elements created by flooding and other natural
events remain in place, so long as this presents no danger to human lives or property; and (4)
promote active restoration of instream roughness in those coastal streams in which restoration
will not occur naturally.

There is reason to be optimistic that all these objectives can be achieved. There seems to be
sufficient funding for these projects, as well as plenty of initiative on the part of many large
forest landowners (probably because the landowners do not need to do much in order to satisfy
the requirements of this part of the plan). In addition, buffers of trees and brush along streams
will naturally provide most of the necessary large woody debris and instream roughness.

C. Reliance on Existing Programs

The OCSRI is intended to evolve into a plan that restores salmonid populations to levels
that are naturally sustainable and salmon habitat to a condition that will adequately support
those populations. It relies on existing programs, statutes, and regulations to accomplish the
majority of its restoration and conservation goals. Although these programs are fragmented
among many agencies and actors and clearly have not had the kind of effect that will be
necessary, they do have some utility. Many of them are already funded, and, furthermore, the
agencies responsible for these programs and regulations have experience in administering the
programs and enforcing the regulations. The OCSRI incorporates these programs and
regulations into its comprehensive plan and tailors their operation and enforcement to
contribute to the success of the OCSRI.

Each of the state agencies involved with natural resources is responsible for enforcing
particular programs that contribute to salmon restoration. This was also the case in the past,
but past efforts, unlike the OCSRI, were carried out by different agencies acting independently
of one another to conserve salmon populations. As discussed earlier, those programs failed
partly because of this lack of coordination. The OCSRI was formulated to address this
problem, and it thus contains a strategy for achieving a coordinated enforcement program.
Simply stated, the strategy calls for all the natural resource agencies to do what they already
are supposed to be doing‹namely, enforcing existing regulations and gaining compliance‹but
in an effective and coordinated manner.

It would appear that while the framers of the OCSRI felt that existing laws and
regulations may be adequate, they questioned whether the agencies have the capability to
execute them thoroughly. As is true for many aspects of the OCSRI, implementation will require
increased funding. This does not mean, however, that the OCSRI should place the blame for
past failures wholly on funding problems. Many of the natural resource agencies have taken a
soft approach toward enforcing programs. Simply providing these agencies with more money
will not be productive if the agencies do not take the steps that are necessary to effectively
enforce these programs. The Implementation Team will need to examine whether the agencies
are implementing responsible and effective strategies.

Some of the currently existing regulations and programs have evolved from the restoration
and maintenance plans of the past, all of which were executed with less success than
anticipated (State of Oregon 1997a, 5-1, 5-10, 5-11). Yet the OCSRI is based on the belief that,
with proper implementation and compliance, these existing, but until now, ineffective programs
will bring about the restoration of salmon populations and habitat. Some of this optimism
stems from the conceptual foundation of the OCSRI. Never before have these existing programs
been expected to operate with such an emphasis on interagency coordination, and the state
believes this will make a difference in the effectiveness of the programs. Also, these programs
have not previously operated within a framework of holistic ecosystem management, but,
rather, they have focused on particular elements of the salmon life cycle without taking into
account the interdependence of these elements. The OCSRI maintains that the proper approach
to salmon restoration is the holistic ecosystem approach, and it intends that the existing
programs will be implemented within the framework of that conceptual foundation.

One potential problem with this approach is that the existing programs were not designed
to work within the broad, ecosystem framework. The OCSRI's conceptual foundation requires
the consideration of a very wide range of factors, but the existing programs currently may not
be capable of such comprehensiveness. The OCSRI emphasizes the necessity of taking a
flexible, adaptive approach, implying that the existing programs can be adapted to match the
requirements of the ecosystem framework. However, modification of the existing programs
would eliminate much of the advantage and economy of utilizing them.

Also incredibly important for the success of the OCSRI is adequate funding. The plan
represents a massive undertaking that will increase the responsibilities and duties of every
agency and actor currently involved in natural resources protection. All of these actors, as well
as the new entities that will be drawn in, will need considerable financial resources.
Furthermore, NMFS wants the state to be as zealous as possible in protecting and restoring
identified core areas of salmon populations and habitat. This will require not only additional
assessments to determine the appropriate core areas, but also special efforts to protect and
restore these areas. Presently, much of the required funding is designated for use in the areas
that need it the most, particularly these core areas. If future legislatures do not provide
sufficient funds for the OCSRI, however, the plan will not succeed.

D. Predation Threats to Juvenile and Adult Salmon

Predation is a natural part of the ecosystem in which salmon live. Adult and juvenile
salmon population levels are decreased by natural predators, including birds, insects, and
pinnipeds. Normally, the effect of these predators on the salmon population would not be
significant, but at the current depressed levels of salmon populations, the effect is
disproportionately greater. A seal population consuming 200 salmon out of a natural run of
25,000 fish does less damage than a seal population consuming 200 salmon out of a depressed
run of 1,500 fish. Furthermore, several exotic species have been introduced into the ecosystem,
and in some instances this has resulted in a potential for unnatural increases in the degree of
predation (State of Oregon 1997a, State Agency Measures, Fish Management, 17B-28, 17B-31).
The OCSRI recognizes the appropriateness of predation as a natural function, however, and
plans to exercise only information-gathering measures at this time. The information that is
collected will guide any future actions by the OCSRI actors.

There is widespread concern, despite much scientific evidence to the contrary, that natural
predation does have a significant impact on coastal salmon populations (State of Oregon
1997a, 3-6). One basis for this concern is the observation of increases in the abundance of
certain predator populations in areas of low coho salmon density (State of Oregon 1997a, State
Agency Measures, Fish Management, 17B-29; State of Oregon 1997a, 3-6). These are potential
danger areas that must be watched, and any remedial measures must take into account the
ecosystem approach of the OCSRI.

The ODFW will develop a set of state policies and guidelines designed to deal with
salmon predation should it become necessary. This work will be done in cooperation with
NMFS, the U.S. Fish and Wildlife Service, and other western states. The ODFW will deal with
any obvious predation problems using current information and levels of understanding. The
agency will monitor populations of salmonid predators, potentially to relate predator
abundance to the timing of adult coho returns and coho smolt out-migration. Specific problem
sites will be monitored and reviewed, and action will be taken if necessary. The state policies
and guidelines that are developed by the ODFW will be very important for consistent and
effective management of predation problems.

Predation problems extend to the presence of introduced, exotic fish in coho habitat,
including important spawning grounds. The coastal lakes that once were rich coho salmon
spawning grounds no longer account for much coho production; those habitats have largely been
taken over by introduced species. The ODFW does not, at present, have a clear understanding
of the extent and significance of the impact of the exotic fishes on coho salmon. In particular,
the ODFW would like to analyze the extent of predation on coho salmon by these exotic fish
species. This task is especially difficult because the environmental changes that have occurred
in many coho waters make it tricky to sort out and determine the impacts of the relevant
variables. Substantial monitoring of introduced fish must be done in order to determine what
kind of effect they are having on coho salmon and what measures can be taken to lessen their
impact. It should be noted that it is difficult to remove exotic species or to reduce their
numbers.

E. Watershed Councils

Watershed councils will play an integral role in the physical habitat restoration efforts, as
well as offer an opportunity for maximizing education and outreach efforts by including a wider
range of people in the decision-making process. Fortunately, many watershed councils already
are fairly active and will require little work to adapt their procedures for assisting with the
plan. When declining to list the coho salmon, NMFS considered the effectiveness of the
mechanisms within the OCSRI that are designed to create and maximize the potential of these
councils. In order to avoid a listing in the future, the OCSRI must encourage and facilitate the
rapid development of the remaining necessary watershed councils and assist them in quickly
and effectively starting their various programs.

A watershed council is a locally organized, voluntary, and nonregulatory group that is
established to assess the local watershed and establish measures to implement enhancement
and protection activities within that watershed. Watershed councils provide an opportunity
for local residents to become involved, at the local level, in making decisions that affect their
watersheds.

Some watershed councils were developed under the Watershed Health Program (WHP),
which was created in 1993 by the Oregon legislature. The WHP originally targeted the Grand
Ronde River Basin and the South Coast and Rogue River Basins. The result has been better
coordination in the areas of data collection, watershed assessment, project design and
implementation, and monitoring protocols, among others. Large industrial forest landowners
and Soil and Water Conservation Districts have assisted the watershed councils.

There are now watershed councils all along the Oregon coast. They are comprised of
representatives from all the major interest groups within the watersheds, including timber,
agriculture, mining, conservation, recreation, and business interests. Interested parties and
private landowners have contributed their time and resources to make the watershed councils
successful. The duties of the councils include

€Assessing and addressing specific limiting factors to salmon recovery;
€Assessing entire watersheds across ownership lines;
€Integrating the role of local landowners;
€Prioritizing and implementing on the ground work through action plan
development and implementation;
€Making habitat improvement decisions based on the best available
science;
€Receiving and disseminating technical habitat information; and
€Monitoring the effectiveness of action plan implementation [State of
Oregon 1997a, 17A-3].

Watershed councils are expected to be the backbone of the habitat portion of the plan.
Recovery efforts within the watersheds must be made across all ownership boundaries, and the
ability to coordinate across federal, state, and private ownership boundaries is a goal of all
watershed councils. Thus far there have been varying degrees of success in the efforts made by
the councils, depending on the strength of the particular council and the cooperation of its
partners. Success must be consistent within all watersheds if the overall goal of the plan is to
be achieved. Regional planning and coordination between state, federal, and private restoration
efforts also must be achieved.

F. Fish Passage

In establishing the requirements for salmon restoration, the OCSRI had to take into
consideration salmon mortality due to lack of adequate fish passage. Many juvenile, as well as
some adult salmon, are killed by contact with unscreened water intake or diversion structures.
Currently, 1,300 unscreened water diversions exist in Oregon's coastal rivers (State of Oregon
1997a, State Agency Measures, Water Quantity, Fish Passage, and Fish Screening, 17B-12). In
order to mitigate against this adverse factor, the WRD requires fish screening on all new
diversions occurring in areas where fish are present. It should also be noted that the ODFW is
working with the Oregon State Police and the Governor's Office to develop and implement a
comprehensive compliance strategy for diversion screening.

Existing state laws (Or. Rev. Stat. §§ 498.268 and 509.605) require that fish passage be
provided and maintained on all stream crossings and instream structures. The fish must be able
to move through a watershed without encountering significant artificial obstacles. The big
enemies here are the diversion or "push-up" dams, particularly in the Rogue River and South
Coast Basins. Regulation of these structures is difficult because no single agency has exclusive
jurisdiction over them.

Ensuring that fish passage will be adequate begins with ensuring that new water
diversions do not create barriers to fish passage. Another solution is to replace diversion or
push-up dams with structures that do not obstruct fish passage. Many of these structures,
however, are put in place by individuals on out-of-the-way streams, and it will be difficult to
identify these barriers and address the problems that they create.

G. Water Quality

Water temperature is one of the more important aspects of water quality concerns and
must be addressed by most of the OCSRI actors. Currently, water temperatures in most coastal
streams are too warm for optimal salmon spawning and survival. Warmer temperatures can
affect spawning, fry emergence, smoltification, maturation period, migratory behavior, and
many other aspects of the salmon life cycle. Water temperatures fluctuate due to factors such
as riparian canopy modification, water withdrawal and other flow issues, and channel
morphology changes. It is important to remember that riparian canopy issues can be resolved
only as quickly as trees grow, which is to say, not very quickly.

The OCSRI establishes a timeline for the goal of restoring salmon-supporting streams to a
healthy temperature. Depending on how significant temperature is as a factor for decline,
lowering the water temperatures may not be sufficient, even if the timeline is realistic. By 2007,
the OCSRI hopes to have 35% of these streams matching the temperature standards set by the
DEQ. By 2012, 45% of the streams would meet this standard; by 2017, 65%; and by 2027,
90%. Salmon populations have dropped dramatically in just the last decade or two. Under
this timeline, it could take that long to get just 65% of the streams back to a healthy temperature
range. Whether this measure will be sufficient is unknown. It may simply be an unfortunate
fact that healthy water temperatures will be difficult to fully restore, and then only in the long
term. The OCSRI should look for ways in which to compensate for its relative impotence in this
area.

If restoration of healthy temperatures is to occur, it will be through the efforts of many
state (and federal) agencies. One such agency is the Oregon DEQ, which will manage nonpoint
and point sources of pollution that affect stream temperature, work with watershed councils on
the water temperature problem, and improve the review and enforcement of CWA section 401
certification conditions for activities in coastal salmonid waters. The DEQ also will apply for
instream water rights to satisfy water quality standards.

A particular area of concern is the effect of sedimentation on salmonids and whether the
plan's biological objectives are adequate for addressing this problem. The OCSRI anticipates
that it will be difficult to establish water quality standards pertaining to sedimentation issues.
As a case in point, the DEQ currently does not have water quality standards that address all
the adverse effects of sedimentation on salmonids through their various life stages. State
agencies would like to address the sedimentation problem through the triennial water quality
standards review process and, at the local level, through watershed council activities. The
DEQ, for example, will participate in the EPA's physical habitat indicators project, reviewing
and revising its water quality standards for sediment during the next triennial review process,
the results of which will be incorporated into the OCSRI. The DEQ also will work cooperatively
with state and federal agencies as well as local governments, watershed councils, and other
actors in developing water quality standards for sediment. However, it is questionable whether
a review every three years will be adequate. Reviews should be incorporated into monitoring
activities on a more frequent basis.

VII. Conclusion

The OCSRI intends to restore declining native coho salmon populations and avoid an ESA
listing of these coho as threatened. It combines the best of past efforts with some new programs
and structural elements within a new conceptual framework‹that of holistic ecosystem
management. This approach, combined with the emphasis on coordination and cooperation
between agencies and actors, has promise.

The MOA between NMFS and the state of Oregon attempts to ensure that, under the
OCSRI, the coho salmon resource will be managed properly and that coho populations will
sufficiently recover to avoid a threatened listing. NMFS has demonstrated a desire to work
with the state in resolving the coho problem, and it is important for future species recovery
efforts in the Pacific Northwest and elsewhere that Oregon demonstrate that this kind of
partnership can maximize the chances for success. While it is likely that the state can satisfy
the demands placed on it by NMFS in the MOA, this alone does not ensure that coho
populations will reach the state's desired levels for harvest resumption.

First, there is no guarantee that the OCSRI actors will achieve the level of coordination and
cooperation necessary to prevent extinction. To do so will require exceptionally strong and
diplomatic leadership. It is not yet possible to say whether this kind of leadership will
consistently exist. Another question that arises is whether private actors will be willing to
continue cooperating sufficiently if such cooperation begins to significantly hurt their interests.
Cooperative efforts on this scale have not yet been tried in Oregon (or, for that matter, in any
other state, to the best of the authors' knowledge).

Second, public expectations could affect the success of the OCSRI. The public is a very
important actor in the OCSRI, and the state will rely on the public for voluntary financial
support and work effort. It is difficult to imagine, however, that the public will act favorably if
significant, positive results do not occur rapidly.

Third, there are many program areas within the OCSRI in which agencies and other actors
are allowed to use their discretion. This is not necessarily a weakness of the OCSRI, but such
discretion could become problematic if not used wisely, or if the actor allows itself to be unduly
influenced by factors other than that of salmon restoration.

Finally, the OCSRI's heavy reliance on watershed councils could create problems. These
councils are not state agencies, but rather regional entities comprised of regional and local actors
(both public and private). Consequently, funding for the councils is somewhat tenuous, even
though they are expected to carry out an enormous amount of the implementation of the OCSRI.
Whether or not the state will be able to fund these watershed councils at a level sufficient for
them to perform successful implementation efforts is not yet known.

Yet there are several aspects of the OCSRI that provide grounds for cautious hope that
success can be achieved. Understanding the importance of keeping up-to-date on the plan's
implementation activities and levels of success, the framers of the OCSRI established a
comprehensive monitoring program that promises to closely chart the progress of coho salmon
restoration. The framers of the OCSRI repeatedly expressed the need for constant evolution of
the plan so that it might adapt to the issues, problems, and successes brought to light by the
monitoring program, thereby ensuring that programs and actions are implemented in such a way
so as to maximize efforts towards success. The framers also wisely decided against scrapping
all past programs and efforts and instead stressed full enforcement of and compliance with
existing useful programs and regulations. Furthermore, they identified accountability of the
OCSRI actors and agencies as an important goal. Such accountability was often lacking in the
past, and this may have crippled many earlier efforts.

The OCSRI is a valiant effort in the face of rapidly approaching tragedy. It should be
admired for its vision and optimism, two qualities which make the successful restoration of
coho salmon and other anadromous species in Oregon far more likely. While the framers
structured the OCSRI with one eye toward NMFS's listing criteria, it is clear that they focused
on restoring salmon populations to healthy levels as their primary motive. No matter what the
results may be, it is entirely likely that the OCSRI will be a model for other species recovery and
habitat restoration efforts within the Pacific Northwest and elsewhere.

REFERENCES

Alegria v. Keeney, 687 A.2d 1249 (R.I. Sup. Ct. 1997).

American Rivers v. Federal Energy Regulatory Commission, Nos. 96-4110(L) et al. (2d Cir. Nov.
5, 1997[a]).

American Rivers v. National Marine Fisheries Service, 1997 U.S. Dist. LEXIS 5337 (D. Or. Apr.
2, 1997[b]).

American Rivers v. National Marine Fisheries Service, No. 96-384-MA (D. Or. Oct. 17, 1997[c]).

Anello v. Zoning Board of Appeals, 678 N.E.2d 870 (N.Y. Ct. Apps. 1997).

Basile v. Town of Southampton, 89 N.Y.2d 974 (1997).

Big River News (Northwest Water Law and Policy Project, Northwestern School of Law of
Lewis and Clark College, Portland, OR). Various issues.

Blumm, Michael C., Michael A. Schoessler, and R. Christopher Beckwith. 1997. Beyond the
parity promise: Struggling to save Columbia Basin salmon in the mid-1990s.
Environmental Law 27:21­126.

Boise Cascade Corporation v. Board of Forestry, 1997 Or. LEXIS 29 (Or. Sup. Ct.).

Botkin, Daniel B., et al. 1995. Status and future of salmon of western Oregon and northern
California: Overview of findings and options. Santa Barbara, CA: Center for the Study
of the Environment.

Broadwater Farms Joint Venture v. United States, No. 96-5100 (Fed. Cir. July 31, 1997).

Brown, Mara A. 1995. Update and commentary on Columbia-Snake River salmon recovery.
Ocean and Coastal Law Memo, issue 43.

Bruce, Bob. 1993. Forestry for the 21st century. Oregon Scientist, Fall, 21.

Buechel v. State, 884 P.2d 910 (Wash. Sup. Ct. 1994).

Burroughs, R. H. 1993. Nonpoint sources as external threats to coastal water quality: Lessons
from Park Service experience. Coastal Management 21:131­142.

California Trout v. Superior Court, 218 Cal. App. 3d 187, 266 Cal. Rptr. 788 (1990).

Cannata v. Department of Environmental Protection, 680 A.2d 1329 (Conn. Sup. Ct. 1996).

City of Klamath Falls v. Environmental Quality Commission, 318 Or. 532, 870 P.2d 825 (1994).

Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989).

Clyde, Steven E. 1989. Adapting to the changing demand for water use through continued
refinement of the prior appropriation doctrine: An alternative approach to wholesale
reallocation. Natural Resources Journal 29:435­455.

Dahlstrom, Carrie E., and Richard Hildreth. 1997a. Bridge over muddy water: The Oregon
Natural Desert Association decision. Restoration: A Newsletter about Salmon, Coastal
Watersheds, and People (Oregon Sea Grant, Corvallis, OR), Spring, 8­9.

Dahlstrom, Carrie E., and Richard Hildreth. 1997b. Courts deconstructing the ESA.
Restoration: A Newsletter about Salmon, Coastal Watersheds, and People (Oregon Sea
Grant, Corvallis, OR), Summer, 6­7, 10.

Department of Environmental Quality (DEQ) and Department of Land Conservation and
Development (DLCD). N.d. A pollution prevention and control program for Oregon's
coastal waters. Salem, OR.

Department of Fish &;Game v. Anderson-Cottonwood Irrigation District, 11 Cal. Rptr. 2d 222
(Ct. App. 1992).

Dolan v. City of Tigard, 114 S. Ct. 2309 (1994).

Environmental Law Reporter. 1996. Vol. 26, p. 10272.

First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304 (1987).

Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994).

Forest Properties, Inc. v. United States, No. 92-851L (Fed. Cl. Ct. Aug. 12, 1997).

Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board, 855 P.2d 568 (Okla.
Sup. Ct. 1990).

Gazza v. New York Department of Environmental Conservation, 89 N.Y.2d 603 (1997), cert.
denied, No. 96-1881 (Oct. 1, 1997).

Gillaspie, Janet. 1997. Steelhead protection &;water quality. Oregon Insider (Envirotech
Publications, Eugene, OR), issue 186.

Goldfarb, William. 1994. Watershed management: Slogan or solution? Boston College
Environmental Affairs Law Review 21:483­509.

Good v. United States, 1997 U.S. Claims LEXIS 179.

Harrison, John. 1993. Caring for coastal salmon: Recovery efforts for damaged salmon runs
where there are few dams. Northwest Energy News (Northwest Power Planning Council,
Portland, OR), Sept./Oct., 24­25.

Healey, Michael C., and Timothy M. Hennessey. 1994. The utilization of scientific information
in the management of estuarine ecosystems. Ocean &;Coastal Management 23:167­191.

Hildreth, Richard G. 1993. The public trust doctrine and coastal and ocean resources
management. Journal of Environmental Law and Litigation 8:155­170.

Hildreth, Richard G. 1995. Ocean planning by U.S. coastal states: Legal implications for ocean
resource use and preservation. In Law of the sea: What the new convention may mean to
you &;those you work for, July 11 &;12, 1995, University of Washington, School of Law,
Seattle, Washington. Seattle, WA: Washington Law School Foundation, Continuing Legal Education.

Hildreth, Richard G. 1996. Aspects of coastal coho recovery. Restoration: A Newsletter
about Salmon, Coastal Watersheds, and People (Oregon Sea Grant, Corvallis, OR),
Summer, 4­5.

Hildreth, Richard G., Mara Brown, and Robert Shavelson. 1993. Integrated watershed
management, cumulative impacts, and implementation of nonpoint source controls: Legal
and policy analysis. Final report to the Oregon Water Resources Research Institute and
EPA Region 10. Ocean and Coastal Law Center, School of Law, University of Oregon,
Eugene, OR.

Hildreth, Richard G., Carrie Dahlstrom, and Marshall L. Wilde. 1998. Western water rights,
the federal navigation servitude, and salmon restoration. Ocean and Coastal Law Memo,
issue 45.

Hildreth, Richard G., and Jeanne Thompson. 1994. Legal aspects of Columbia-Snake River
salmon recovery. Ocean and Coastal Law Memo, issue 41.

Jewett, Joan Laatz. 1998. Salmon plan falls short, federal reviewers find. Oregonian
(Portland), Feb. 18, 1998, A1.

Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th 761 (Cal. Sup. Ct. 1997).

Kentucky Fried Chicken v. New Hampshire Department of Environmental Services, No. 95-E-
363 (N.H. Super. Ct. 1997).

Kim v. City of New York, 1977 WL 68593, 1997 N.Y. LEXIS 101 (N.Y. Ct. Apps. 1997).

Loggerhead Turtle v. Volusia County Council, 896 F. Supp. 1170 (M.D. Fla. 1995).

Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992).

Madera Irrigation District v. United States, 985 F.2d 1397 (9th Cir.), cert. denied, 114 S. Ct. 59
(1993).

Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996), cert. denied, 117 S. Ct. 942 (1997).

McArdle, Deborah A. 1997. California marine protected areas. La Jolla, CA: California Sea
Grant College System, University of California.

Memorandum of agreement between the state of Oregon and the National Marine Fisheries
Service (MOA). 1997.

Mono Lake Water Rights Cases, Nos. 2284 and 2268 (Super. Ct. of El Dorado County, Apr. 17,
1991).

National Marine Fisheries Service (NMFS). 1997. Technical guidance to implement the essential
fish habitat requirements for the Magnuson-Stevens Act. Silver Spring, MD.

Natural Resources Defense Council v. Patterson, No. CIV. S-88-1658 LKK (E.D. Cal. Jan. 16,
1997).

Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995), cert.
denied, U.S. Sup. Ct. No. 95-1732 (June 24, 1996).

Northwest Forest Resource Council v. Pilchuck Audubon Society, 97 F.3d 1161 (9th Cir. 1996).

Oregon Natural Desert Association v. Thomas, 940 F. Supp. 1534 (D. Or. 1996), appeal
pending (9th Cir. 1997).

Oregon Natural Resources Defense Council v. Daley, No. C97-1155-ST (D. Or. 1997).

Pacific Rivers Council v. Thomas, 936 F. Supp. 738 (D. Idaho 1996).

Palazzolo v. Coastal Resources Management Council, No. 88-0297 (R.I. Super. Ct. Oct. 24,
1997).

Patis, Jason M. 1996. Recovery, conservation, and survival under the Endangered Species Act:
Recovering species, conserving resources, and saving the law. Public Land &;Resources
Law Review 17:55­124.

Polaskey, Stephen, Holly Doremus, and Bruce Rettig. 1997. Endangered species conservation
on private land. Contemporary Economic Policy 15:66­76.

Polaskey, Stephen, and Holly Doremus. Forthcoming 1998. When the truth hurts: Endangered
species policy on private land with imperfect information. Journal of Environmental
Economics and Management.

Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996).

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985).

Rohlf, Daniel. 1995. Legal issues shaping salmon's future. Environmental Law 25:413­416.

Seattle Audubon Society v. Moseley, 80 F.3d 1401 (9th Cir. 1996).

State of Oregon. 1997a. The Oregon plan: Oregon Coastal Salmon Restoration Initiative.
Salem, OR.

State of Oregon. 1997b. The Oregon plan: Supplement I - Steelhead. Salem, OR.

State v. Dexter, 202 P.2d 906 (Wash. Sup. Ct. 1949).

State v. Grimes, 852 P.2d 1044 (Wash. Sup. Ct. 1993).

Strahan v. Coxe, 1996 U.S. Dist. LEXIS 17151 (D. Mass.).

Suitum v. Tahoe Regional Planning Agency, 1997 U.S. LEXIS 3233 (U.S. Sup. Ct.).

Tarlock, A. Dan. 1995. Reallocation: It really is here. In Water law trends, policies, and
practice, ed. Kathleen Marion Carr and James D. Crammond. Chicago, IL: American Bar
Association.

Thompson, Barton H. 1997. The Endangered Species Act: A case study in takings and
incentives. Stanford Law Review 49:305­380.

United States v. Glenn-Colusa, 758 F. Supp. 1126 (E.D. Cal. 1992).

United States v. State Water Resources Control Board, 227 Cal. Rptr. 161 (1986).

Volkman, John M. 1997. The Endangered Species Act and the ecosystem of Columbia River
salmon. Hastings West-Northwest Journal of Environmental Law and Policy 4, no. 1:
51­69.

Zealy v. City of Wankesha, 534 N.W.2d 917 (Wis. App. 1995).

ACRONYMS

CWA - Clean Water Act
DEQ - Department of Environmental Quality
DLCD - Department of Land Conservation and Development
EFH - Essential Fish Habitat
EQC - Environmental Quality Commission
ESA - Endangered Species Act
FMP - Fishery Management Plan
GCG - Gene Conservation Group
GPV - Greatest Permanent Value
IMST - Independent Multidisciplinary Science Team
MOA - Memorandum of Agreement
MSFCMA - Magnuson-Stevens Fishery Conservation and Management Act
NMFS - National Marine Fisheries Service
PFMC - Pacific Fishery Management Council
OAR - Oregon Administrative Rules
OBF - Oregon Board of Forestry
OCSRI - Oregon Coastal Salmon Restoration Initiative
ODA - Oregon Department of Agriculture
ODF - Oregon Department of Forestry
ODFW - Oregon Department of Fish and Wildlife
ORS - Oregon Revised Statutes
OSU - Oregon State University
WHP - Watershed Health Program
WRD - Water Resources Department

For further information on subjects covered in the Ocean and Coastal Law Memo, contact Professors Richard G. Hildreth or Jon L. Jacobson, Ocean and Coastal Law Center, University of Oregon School of Law, Eugene, OR 97403-1221. Tel. (541) 346-3845. Fax (541) 346 1564.