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DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT

 

DIVISION 37

GOAL 17 WATER-DEPENDENT SHORELANDS

660-037-0010

Purpose Statement

The purpose of this division is to implement Coastal Shoreland Uses Requirement 2 of Goal 17 Coastal Shorelands (OAR 660-015-0010(2)) regarding water-dependent shorelands in estuaries. This division explains how to calculate the minimum amount of shorelands to be protected for water-dependent uses. This division also identifies the qualifications of shorelands suitable for water-dependent uses as well as suggested land use regulations for implementation.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0020

Policy

(1) The Land Conservation and Development Commission (LCDC) recognizes that since the early 1980's, when comprehensive estuary management plans were acknowledged by LCDC, significant economic changes experienced in coastal communities have affected the demands for shorelands. During this period, most of the shorelands designated for water-dependent development in local estuary plans have remained vacant. As a result of these economic changes, there have been increased pressures to develop the vacant or underdeveloped water-dependent lands for nonwater-dependent uses.

(2) The reasons to protect certain shorelands for water-dependent uses are both economic and environmental. Economically, shoreland sites for water-dependent development are a finite economic resource that usually need protection from prevailing real estate market forces. By its very nature, water-dependent development can occur only in shoreland areas and only in certain shorelands with suitable characteristics relating to water access, land transportation and infrastructure, and surrounding land use compatibility. Once these suitable sites are lost to nonwater-dependent uses, they are very difficult and expensive to recover, if at all. Environmentally, providing "suitable" areas for water-dependent development means less economic and political pressure to accommodate future development in environmentally sensitive areas such as wetlands, marshes, and biologically productive shallow subtidal areas.

(3) As a matter of state policy, it is not desirable to allow these scarce and non-renewable resources of the marine economy to be irretrievably committed to, or otherwise significantly impaired by, nonindustrial or nonwater-dependent types of development which enjoy a far greater range of locational options.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0030

Statement of Applicability

(1) This division applies to any post-acknowledgment plan amendment or periodic review work task that:

(a) Would directly affect a designated water-dependent shoreland site; and

(b) Is initiated on or after the effective date of this division.

(2) For purposes of this division, a designated water-dependent shoreland site is directly affected when any post-acknowledgment plan amendment or periodic review work task would:

(a) Change the size or shape of the site;

(b) Allow or authorize a nonwater-dependent use or activity at a site, unless the use or activity is a "permissible nonwater-dependent use" as allowed by Goal 17 Coastal Shoreland Uses Requirement 2 (OAR 660-015-0010(2)); or

(c) Prohibit all water-dependent uses and activities at the site.

(3) For purposes of this division, a post-acknowledgment plan amendment is "initiated" when a local government files a proposed amendment to or adoption of a comprehensive plan or land use regulation with the director in accordance with OAR 660-018-0020.

(4) For purposes of this division, a periodic review work task is "initiated" when a local government's periodic review work program is approved in accordance with OAR 660-25-0100 or modified in accordance with OAR 660-25-0100.

(5) This division does not mandate any changes to existing local comprehensive plans or land use regulations for water-dependent shorelands. Local cities and counties may retain their existing comprehensive plan designations and land use regulation designations for water-dependent shorelands.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & 197
Stats. Implemented: ORS 197.010 - 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99; LCDD 3-2004, f. & cert. ef. 5-7-04

660-037-0040

Definitions

For purposes of division 037, the definitions contained in ORS 197.015 and the Statewide Planning Goals (OAR chapter 660, division 015) apply. In addition, the following definitions apply:

(1) "Designated water-dependent shoreland site" means an estuarine shoreland area designated in a comprehensive plan and land use regulation to comply with Coastal Shoreland Uses Requirement 2 of Goal 17, Coastal Shorelands (OAR 660-015-0010(2)).

(2) "Goal 2 Exception" means the land use planning requirements waiver process provided in Goal 2, Land Use Planning, Part II (OAR 660-015-0000(2)) and OAR Chapter 660, Division 004, Interpretation of Goal 2 Exception Process.

(3) "Periodic review" means the land use planning process described in ORS 197.628 through 197.646.

(4) "Post-acknowledgment plan amendment" means an action taken in accordance with ORS 197.610 through 197.625, including amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation. The term does not include periodic review actions.

(5) "Structure or facility that provides water-dependent access" means anything constructed or installed , regardless of its present condition, functionality or serviceability, that provides or provided water-dependent uses with physical access to the adjacent coastal water body. Examples include wharves, piers, docks, mooring piling, boat ramps, water intake or discharge structures, or navigational aids.

(6) "Water-Dependent Use".

(a) The definition of "water-dependent" contained in the Statewide Planning Goals (OAR Chapter 660, Division 015) applies. In addition, the following definitions apply:

(A) "Access" means physical contact with or use of the water.

(B) "Requires" means the use either by its intrinsic nature (e.g., fishing, navigation, boat moorage) or at the current level of technology cannot exist without water access.

(C) "Water-borne transportation" means uses of water access:

(i) Which are themselves transportation (e.g. navigation);

(ii) Which require the receipt of shipment of goods by water; or

(iii) Which are necessary to support water-borne transportation (e.g. moorage fueling, servicing of watercraft, ships, boats, etc. terminal and transfer facilities).

(D) "Recreation" means water access for fishing, swimming, boating, etc. Recreational uses are water dependent only if use of the water is an integral part of the activity.

(E) "Energy production" means uses which need quantities of water to produce energy directly (e.g. hydroelectric facilities, ocean thermal energy conversion).

(F) "Source of water" means facilities for the appropriation of quantities of water for cooling processing or other integral functions.

(b) Typical examples of water dependent uses include the following:

(A) Industrial - e.g., manufacturing to include boat building and repair; water-borne transportation, terminals, and support; energy production which needs quantities of water to produce energy directly; water intake structures for facilities needing quantities of water for cooling, processing, or other integral functions.

(B) Commercial - e.g., commercial fishing marinas and support; fish processing and sales; boat sales, rentals, and supplies.

(C) Recreational - e.g., recreational marinas, boat ramps, and support.

(D) Aquaculture.

(E) Certain scientific and educational activities which, by their nature, require access to coastal waters - estuarine research activities and equipment mooring and support.

(c) For purposes of this division, examples of uses that are not "water dependent uses" include restaurants, hotels, motels, bed and breakfasts, residences, parking lots not associated with water-dependent uses, and boardwalks.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0050

Minimum Water-Dependent Shoreland Protection Acreage

(1) Estuarine cities and counties shall protect for water-dependent industrial, commercial, and recreational uses a minimum amount of shorelands suitable for water-dependent uses.

(2) Estuarine cities and counties shall calculate the minimum amount of shorelands to be protected within their respective political boundaries based on the following combination of factors as they may exist:

(a) Current Water-Dependent Use -- Acreage of estuarine shorelands that are currently being used for water-dependent uses; and

(b) Former Water-Dependent Use -- Acreage of estuarine shorelands that at any time were used for water-dependent uses and still possess a structure or facility that provides water-dependent access.

(c) For purposes of this rule, the calculation of the minimum amount of shorelands to be protected shall include storage and other backup land that is, or in the case of former water-dependent uses was, in direct support of the water-dependent use at the site.

(3) The minimum amount of shorelands to be protected in each estuary as a whole shall be equivalent to the sum of the minimum acreage calculations for each city and the county in the estuary.

(4) To calculate the minimum water-dependent shoreland protection acreage required by this rule, local governments may:

(a) Rely on data from local assessor maps or from plat maps that were officially adopted as part of a locally approved development plan;

(b) Generate original acreage data from orthorectified aerial photography;

(c) For shoreland parcels with a mixture of water-dependent and nonwater-dependent uses, visually approximate the acreage after examining assessor maps or plat maps, or after making a physical reconnaissance of the mixed-use shoreland sites; or

(d) Any other valid source as appropriate.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0060

Designate Water-Dependent Shorelands

(1) Estuarine city and county comprehensive plans shall designate as water-dependent shorelands a sufficient total acreage that is equal to or greater than the minimum water-dependent shorelands acreage calculated by OAR 660-037-0050 above. In addition, all shorelands designated in accordance with this rule shall satisfy the water-dependent access locational criteria of OAR 660-037-0070 below.

(2) Designation Options. Either Option A or Option B:

(a) Option A: An individual estuarine city or county may designate as water-dependent shorelands any shorelands within its planning jurisdiction the total acreage of which is equal to or greater than the minimum acreage of water-dependent shorelands calculated for protection in OAR 660-037-0050 above.

(b) Option B: An individual estuarine city or county may designate as water-dependent shorelands any shorelands within its planning jurisdiction the total acreage of which is less than the minimum acreage of water-dependent shorelands calculated for protection in OAR 660-037-0050 above. An estuarine city or county choosing to exercise this option must do so in coordination with one or more of the other city and county governments in the estuary. This means that the local governments participating in Option B must do the following:

(A) Revise their comprehensive plans and land use regulations in compliance with this division; and

(B) Designate as water-dependent shorelands any shorelands within the estuary whose total acreage is equal to or greater than the minimum acreage of water-dependent shorelands calculated for the estuary as a whole in OAR 660-037-0050 above. In effect, this means that the other cities and the county in the estuary will provide the water-dependent shoreland acreage not provided by the jurisdiction or jurisdictions exercising Option B.

(3) Local governments are encouraged to designate and protect as water-dependent shorelands an amount that is greater than the minimum required to be protected by this division. This "excess capacity" may be beneficial to achieving local economic objectives over the long term.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0070

Water-Dependent Shoreland Locational and Suitability Criteria

(1) A proposal to designate lands as water-dependent shorelands in accordance with OAR 660-037-0060 above shall meet all of the following minimum locational and suitability criteria:

(a) The proposed shoreland site is within an urban or urbanizable area, or if in a rural area it is built upon or irrevocably committed to non-resource use or is designated in accordance with OAR Chapter 660, Division 022 Unincorporated Communities.

(b) The designated water-dependent uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse effects.

(c) The proposed shoreland site and its designated uses and activities comply with all applicable Statewide Planning Goals, in particular with Goal 16 Estuarine Resources, and with the Goal 2 Exceptions process if applicable.

(A) Any water-dependent shoreland site acknowledged to comply with the Statewide Planning Goals without needing a Goal 2 Exception prior to the effective date of this division and that is selected to provide a jurisdiction's minimum shorelands acreage for water-dependent protection is deemed to comply with this rule provided there are no changes to the following:

(i) The size or shape of the site; or

(ii) The uses or activities allowed or authorized at the site, unless the use or activity is a "permissible nonwater-dependent use" as allowed by Goal 17 Coastal Shoreland Uses Requirement 2 (OAR 660-015-0010(2)).

(B) Any water-dependent shoreland site acknowledged to comply with the Statewide Planning Goals with a Goal 2 Exception prior to the effective date of this division and that is selected to provide a jurisdiction's minimum shorelands acreage for water-dependent protection is deemed to comply with this rule provided all of the following criteria are met:

(i) There are no changes to the size or shape of the site.

(ii) There are no changes to the uses or activities allowed or authorized at the site, unless the use or activity is a "permissible nonwater-dependent use" as allowed by Goal 17 Coastal Shoreland Uses Requirement 2 (OAR 660-015-0010(2)).

(iii) The local government provides in writing its reasons for retaining the shoreland site in a water-dependent designation. As part of this explanation, the local government may consider factors such as the site's location and parcel size. The explanation shall include a description of the proposed or potential alterations to the natural resources that were the object of the Goal 2 Exception, as well as any practicable methods for avoiding or offsetting potential adverse effects to those resources. The commission encourages developers of these sites to take all practicable steps to avoid or offset potential adverse effects to significant natural resources at these sites. The protection of these natural resources will be a particular focus of the department's review of any subsequent state or federal regulatory permits.

(d) The proposed shoreland site possesses or is planned for land-based transportation and public utility services appropriate for the designated uses. Considerations should include the following: availability of public sewers, public water lines, and adequate power supply; and access to the area for truck and rail, if heavy industry is to be accommodated.

(e) The proposed shoreland site possesses or is planned for storage, parking, or other backup land that is adequate for the designated uses.

(f) The proposed shoreland site is capable, with or without the use of structures or facilities that provide water-dependent access, of providing the designated water-dependent uses with access to the adjacent coastal water body.

(g) If transportation, commercial fishing, or recreational boating uses are designated, the adjacent coastal waters provide or are planned for adequately sized navigational channels.

(2) Appropriate additional locational criteria may be considered by the local government in the analysis of a site's suitability for water-dependent development. These include the following:

(a) The site is capable of providing large quantities of water for uses needing water for processing and cooling purposes (e.g., hydroelectric power plants, fish processing plants, pumped storage power plants).

(b) The site is in close proximity to shipping facilities for uses that rely heavily on the waterborne transportation of raw materials or products that are difficult to transport on land (e.g., coal export facilities; cement plants; quarries).

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0080

Methods of Protection

(1) Local governments shall adopt appropriate land use regulations that protect for water-dependent recreational, commercial, and industrial uses the shorelands designated in OAR 660-037-0060 above.

(2) A designated water-dependent shoreland is protected for water-dependent uses when:

(a) the operation of a water-dependent use is not threatened by nonwater-dependent uses; and

(b) the siting of future water-dependent uses will not be preempted by the presence of nonwater-dependent uses.

(3) To protect a designated water-dependent shoreland site, local land use regulations may do any of the following:

(a) Allow only water-dependent uses.

(b) Allow nonwater-dependent uses that are in conjunction with and incidental and subordinate to water-dependent uses on the site.

(A) Such nonwater-dependent uses shall be constructed at the same time as or after the water-dependent use of the site is established, and must be carried out together with the water-dependent use.

(B) The ratio of the square footage of ground-level indoor floor space plus outdoor acreage distributed between the nonwater-dependent uses and the water-dependent uses at the site shall not exceed one to three (nonwater-dependent to water-dependent).

(C) Such nonwater-dependent uses shall not interfere with the conduct of the water-dependent use.

(c) Allow temporary nonwater-dependent uses that involve minimal capital investment and no permanent structures. The intent of allowing such uses is to avoid posing a significant economic obstacle to attracting water-dependent uses. Tools for implementing this approach include "vacate" clauses in leases on public lands, as well as requiring "vacate" clauses for land use approvals involving leasing of private lands.

(4) Local governments may use any combination of the following techniques for their land use regulations for protecting designated water-dependent shorelands:

(a) Traditional water-dependent zoning district. Traditional zoning districts typically list uses and activities that will be allowed either with or without a discretionary "conditional use" review.

(b) "Floating" water-dependency performance standard. The water-dependent protection standard would "float" within a designated geographic area rather than being applied to specific parcels within the area. Such a "performance zone" would typically be applied to urban waterfronts with existing or planned mixed water-dependent and nonwater-dependent uses, or to large undeveloped shoreland sites to configure planned development away from environmentally sensitive natural resources at the site.

(A) The "floating" water-dependency performance standard must establish quantitative performance measures for retaining water-dependency. The performance measures shall be expressed as overall acreage, floor space square footage, waterfront lineal footage, or other suitable quantitative measure of water-dependent use.

(B) Nonwater-dependent development proposals within the "floating" water-dependency performance zone would be measured against maintaining the overall water-dependency standard.

(C) Additional development controls including compatibility with existing water dependent uses, reserving waterfront access, and limiting development to certain specified types or categories of water-dependent uses may also be established.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

660-037-0090

Rezoning of Qualifying Shorelands to Nonwater-Dependent Uses

(1) Any amendment to an acknowledged comprehensive plan or land use regulation under this rule must comply with all applicable Statewide Planning Goals. For purposes of this division, such applicable Goals include but are not limited to the following: Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces (OAR 660-015-0000(5)); Goal 7, Natural Hazards (660-015-0000(7)); Goal 16, Estuarine Resources (660-015-0010(1)); and Goal 17, Coastal Shorelands (660-015-0010(2)). In Goal 16, the designation of estuarine management units is based in part on the uses of the adjacent shorelands. Consequently, any change to shoreland designations and allowed uses being proposed under this division must include consideration of affected estuarine management unit designations and allowed uses. This is particularly important in situations where the level of development designated in the adjacent estuarine management unit was acknowledged through a Goal 2 Exception; retaining that level of estuarine development would no longer be justified without taking a new Goal 2 Exception.

(2) Local governments that choose to rezone shoreland sites to nonwater-dependent uses as allowed under this division are encouraged to provide for water-related and water-oriented uses at such sites as much as possible.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.010 – ORS 197.830
Hist.: LCDD 7-1999, f. & cert. ef. 8-20-99

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