Project Review

In addition to planning requirements, Goal 16 sets a number of requirements that apply to review of specific development projects. These tests are designed to assure that proposed uses are compatible with other uses of the estuary, and that possible harmful effects are kept to a minimum. Up to four different requirements affect how local governments and state agencies review specific proposals for estuarine development. These include the resource capabilities test; the dredge, fill and other alterations test; the impact assessment requirement; and the mitigation requirement.

Most of these requirements are applied by local governments through review of permits for specific projects. However, some plans have addressed project review requirements in the comprehensive plan. In a few cases, plans have deferred these requirements to resource agencies to apply through agency permit reviews. It is necessary to review each local plan to determine how these requirements are implemented.

The resource capabilities test

The management unit charts on the previous page list uses as either "permissible uses" or "resource capability uses." Permissible uses are considered to be consistent with the purposes of the management unit and are, therefore, only subject to the dredge/fill test. Uses listed as resource capability uses, however, may or may not be "consistent with the resource capabilities of the area and the purposes of the management unit."

Through the resource capabilities test, local governments consider the effects of each conditional use on other uses, the resources in the area, and the management objective for the unit. Based on these considerations, a conditional use will either be allowed, or limited in such a way that it is consistent with the uses, resources, and management objectives for the area. The resource capabilities test can be applied either during plan development or through the review of a particular project.

Whether or not a use is consistent with these values and objectives will depend on a site's ability to tolerate a particular type or level of use, considering:

the resources present at the site;
other uses in the area; and
the size, scale or location of the proposed use.

Local governments weigh these factors to determine the appropriateness of a proposed use. A use or activity is considered appropriate when:

Either the impacts of the use on estuarine species, habitats, biological productivity and water quality are not significant or the resources of the area are able to assimilate the use and activity and their effects, and continue to function in a manner which protects or conserves5 important natural resource values or uses.

Important natural resource values in natural management units are significant wildlife habitats, natural biological productivity, and values for scientific research and education. Important resource values and uses in conservation management units are renewable resources, natural biological productivity, recreational and aesthetic values, and aquaculture.

Resource agency review

Resource agencies play an important role in making resource capability decisions. The test requires local governments to gather information about the impacts of proposed uses — information that is often available from state and federal resource agencies. The test also requires that a judgment be made about whether or not the use is appropriate. Such judgments also involve the expertise of resource agency personnel.

In several cases, local plans defer resource capability decisions to state agencies. For example, Tillamook County leaves decisions on the appropriateness of oyster culture operations to the Department of Fish and Wildlife; the appropriateness of log storage in Coos Bay is decided by the Department of Environmental Quality; and Douglas County leaves the review of dredge and fill activities in the Umpqua River to the Division of State Lands.

An example of a resource capabilities test

Consider a marina development proposed in a conservation management unit. Marinas are allowed in conservation management units if they have only insignificant impacts or where they are, in essence, compatible with other values and uses in the management unit.

Expansion of an existing marina in an area with minimal resource values by the addition of a few floats and pilings, and which involves no dredging, would probably be considered to have insignificant impacts. A proposal for a new, large marina which involves dredging, or which would impact existing uses or values, must be evaluated to determine whether or not it fits the resource values and uses in the area. If the proposed marina would interfere with an existing use or resource value, it would probably be inconsistent with the resource capabilities of the area. The local government might also determine that by reducing its size or changing its location or configuration, the marina could be made compatible with adjoining uses. If this is the case, the marina could be approved with appropriate limiting conditions.

Dredge, fill and other alterations test

Estuaries are sensitive ecosystems. Even slight changes such as the placement of a few cubic yards or fill, or a small amount of dredging, can destroy habitat or damage a population. Because estuarine resources are so sensitive, the goal requires careful review of any proposed dredging, filling or other alteration to assure that the activity is needed and that harmful effects are kept to a minimum. The goal sets strict tests for allowing dredging or filling in the estuary. Dredging or filling is only allowed:

If required for navigation or other water-dependent uses that require an estuarine location, or if specifically allowed by the applicable management unit requirements of Goal 16;
If a need (i.e. a substantial public benefit) is demonstrated and the use or alteration does not unreasonably interfere with public trust rights;
If no feasible alternative upland locations exist; and
If adverse impacts are minimized.

Other activities which could affect the estuary's physical processes or biological resources are also subject to review. These "other alterations" include but are not limited to: inwater structures, riprap, log storage, application of pesticides and herbicides, water intake or withdrawal, wastewater discharge, and flow-lane disposal of dredged material. Other alterations which do not involve dredge or fill are allowed if the requirements in 2, 3 and 4 are met.

These requirements may be applied at the time of the plan development for activities that are identified in and anticipated by the plan. Otherwise, they must be addressed at the time of permit review.

Impact assessment

The resource capabilities test and the dredge/fill and other alterations test require that information about estuarine impacts be gathered and analyzed to support individual decisions. An impact assessment is the mechanism for gathering and presenting such information.

An impact assessment must be prepared for any activity which would potentially alter the estuarine ecosystem. Such activities include dredging, fill, in-water structures, riprap, log storage, application of pesticides and herbicides, water intake or withdrawal, wastewater discharge, flowlane disposal of dredged material, and any other activity which could affect the estuary's physical processes or biological resources.

Impact assessments must include information on the following:

The type and extent of alterations expected;
The type of resource(s) affected;
The expected extent of impacts of the proposed alteration on water quality and other physical characteristics of the estuary, living resources, recreation and aesthetic use, navigation and other existing and potential uses of the estuary; and
The methods which could be employed to avoid or minimize adverse impacts.

The detail of impact assessments varies depending upon the nature of the proposed activity and the resources that are affected. Larger projects that involve extensive dredging or filling and that are proposed for sensitive areas will require more detailed reports than projects which involve only minor alterations. An assessment is adequate if it enables reviewers to gain a clear understanding of the impacts to be expected. An assessment need not be lengthy or complex so long as this standard is met. Impact assessments are generally prepared when a permit is requested, unless one has been made in the plan.

Mitigation

The effects of development projects which in involve fill or dredging in intertidal areas must be offset by the creation, restoration or enhancement of another part of the estuary. By replacing lost values, mitigation ensures that the integrity of the estuarine ecosystem is maintained. This requirement is also contained in the Removal-Fill Law implemented through administrative rules adopted by the Division of State Lands (DSL) (OAR 141-85-240). DSL decides how much mitigation is required for individual projects through its review of removal-fill permits.

Mitigation is not considered a reason or justification for allowing estuarine dredging or filling. Instead, the mitigation requirement is applied after a project meets the criteria for granting permits specified in the Removal-Fill Law. This includes a requirement that impacts of proposed fill or dredging must be minimized.

Goal 16 requires that plans designate and protect appropriate sites to mitigate or restore estuarine values that have been lost or damaged by past development. The number and type of sites designated in each estuary varies. Where it is possible to do so, plans must designate and protect sites which generally correspond to the type and size of intertidal areas proposed for dredging or filling.

⁵ Activities in natural management units must preserve resource values. Activities in conservation management units are required to conserve the same values. Protect is defined as: "to save or shield from loss, destruction or injury or for future intended use." Conserve is defined as: "to manage in a manner which avoids wasteful or destructive uses and which provides for future availability."