OAR 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.