Announcement: On March 18, 2020, the NOAA Office for Coastal Management Approved TSP Part 5 into the Oregon Coastal Management Program. This approval allows the enforceable policies identified in Part Five to be applicable in reviewing federal actions pursuant to the federal consistency requirements of the Coastal Zone Management Act and its implementing regulations found at 15 CFR part 930.
Part Five of Oregon's Territorial Sea Plan describes the process for making decisions concerning the development of renewable energy facilities (e.g. wind, wave, current, thermal, etc.) in the state territorial sea, and specifies the areas where that development may be sited. The requirements of Part Five are intended to protect areas important to renewable marine resources (i.e. living marine organisms), ecosystem integrity, marine habitat and areas important to fisheries from the potential adverse effects of renewable energy development (facility siting, development, operation, and decommissioning). Part Five provides a system to identify the appropriate locations for that development which minimize the potential adverse impacts to existing ocean resource users and coastal communities.
Part Five Amendment Process (2008-2013)
Creating natural resource policy in the ocean is often as complex as the resource itself. The creation of Part Five required multiple working groups, many meetings, and multiple years to complete.
Court of Appeals Decision (2013-2018)
The adoption of 2013 Part Five Amendment was challenged based on procedural grounds soon after it's adoption (Cieko v. DLCD). The Court ruled in 2018 in favor of the petitioners, determining that the procedures established in statute ORS 196.471(3)(a) (which were amended in June 2013 by Senate Bill 605), applied to the Part Five amendments that LCDC adopted in January of 2013.
The Court of Appeals decision describes the procedures for moving forward to re-adopt the Part Five chapter and follows the 2013 ORS 196.471 statutory language. The decision also recognizes the joint roles played in the coordination and management of ocean resources by OPAC and LCDC.
What does this Mean?
Overall, the outcome of the Court of Appeals decision invalidates the 2013 Part Five amendment including the maps, data products, and site designation process. The original 2009 Part Five chapter is the currently approved plan.
Whats Next for Part 5?
The Oregon Land Conservation and Development Commission now has four options for moving forward in regards to Part Five. Each alternative comes with complexity and it's own timeline for completion.
In September, 2018, the Land Conservation and Development Commission chose to move forward to modify its original recommendations and send them back to OPAC as specified revisions. These revisions include:
- Removal of the Pacific City/Nestucca and OPT Reedsport Renewable Energy Facility Suitability Study Area's (REFSSA)
- Designate Undersea fiber-optic telecommunications cables and research cables (along with their associated maintenance buffers) as Renewable Energy Exclusion Areas (REEA)
- Text amendments to implement the above recommendations, along with language that provides improvements in the project review process and standards.