Chapter 17.72
MARINE ACTIVITY (MA) DISTRICT
Sections:
17.72.020 Aquatic development (AD) shallow draft.
17.72.030 Water-dependent (WD) development subarea.
17.72.040 Public recreation (MR).
17.72.050 Priority dredge material disposal sites (DMD).
17.72.060 Shoreland and aquatic development standards – Chetco Estuary.
17.72.080 Development review procedure.
17.72.010 Purpose.
The marine activity zone is to provide areas at the Port of Brookings and along development shorelands of the Chetco River, for commercial, industrial and recreation activities that depend or are benefitted by a waterfront location, and to reserve such areas for those uses and the facilities and accommodations necessary to support the tourist and fishing industries.
Water surface areas will be designated for development, conservation or preservation (AD, AC, AN). Shorelands in the marine activity zone will be divided into subareas (WD, WR, MC, MR, DMD), to assure that a variety of economic activities, tourist facilities and active and passive recreation can occur along the Chetco, within the carrying capacity of existing shoreland and aquatic areas. Reference the maps marked attachments “A,” “B” and “C,” attached to the ordinance codified in this chapter, being made a part hereof.
Management units, their resource capability purpose, priorities, and permitted uses, within the Brookings city limits, are set out in BMC 17.72.020 through 17.72.060. [Ord. 89-O-446 § 1.]
17.72.020 Aquatic development (AD) shallow draft.
A. Purpose of Management Units. To provide a shallow draft navigation system serving sites suitable for shoreland development, and to provide for more intense use or alteration of aquatic areas to serve water-dependent development, as consistent with the purposes of this shallow draft development estuary and goals of this estuary plan.
B. Priority activities in these areas will include:
1. Channel and jetty maintenance;
2. Water-dependent commercial;
3. Industrial;
4. Recreation activity at the Port of Brookings;
5. Navigation improvements;
6. Moorage and marinas;
7. Extraction and shipment of gravel.
C. Aquatic Development (AD). Uses permitted with standards include:
1. Maintenance dredging and dredge for water-dependent uses;
2. Piling and dolphin installation;
3. Navigational aids;
4. Docks for industrial and commercial transshipment and for commercial and sport basins;
5. Dredged marinas and boat basins;
6. Jetty and dike construction and maintenance;
7. Active and passive restoration;
8. Aggregate extraction under existing permits;
9. Excavation to create new navigable water area;
10. Expansion of moorage areas serving water-dependent development;
11. Water storage areas for water-dependent uses.
D. Conditional Uses.
1. Fill of estuarine waters for water-dependent activity;
2. New gravel extraction sites. [Ord. 89-O-446 § 1.]
17.72.030 Water-dependent (WD) development subarea.
A. Purpose. These subareas are reserved for priority water-dependent development that can make effective use of a waterside location. It is to be assumed that the activities listed here are allowed in WD subareas of the MA zone. Standards will be used to assure that development occurs in a manner consistent with the carrying capacity of the estuary and purposes of the management unit, BMC 17.72.060.
B. Uses Permitted with Standards. The following uses shall be permitted subject to standards pursuant to BMC 17.72.060:
1. Barge and other industrial docks, backup land and facilities supporting waterborne commerce;
2. Marineways;
3. Wharves and piers; marine facilities;
4. Seafood and other marine products receiving and processing;
5. Boat moorage, ramp, and launch facilities;
6. Cold storage, repair, and other direct services to water-dependent activity;
7. Dredge material disposal;
8. Navigational aids;
9. Excavation to create new water area;
10. Jetty and dike maintenance;
11. Shoreline stabilization (vegetation, riprap, bulkhead, retaining wall);
12. Fill of shoreland for water-dependent use or that cause no loss of shoreland available to WD use;
13. Utilities to serve water-dependent use or that cause no loss of shoreland available to WD use;
14. Access roads necessary to water-dependent use;
15. Drydock facilities;
16. Temporary parking, boat trailer storage, RV parks that make no structural improvements that would preclude use of the site for WD use.
C. Conditional Uses. The following uses are permitted subject to receipt of a conditional use permit and standards listed in BMC 17.72.060:
1. Land transportation facilities not necessary for water-dependent use;
2. Low intensity recreation;
3. Construction of new dikes;
4. Offices providing services to water-dependent activity;
5. Activities not here listed that require water access for transportation, recreation, or as an energy or water source; or provide direct services to a water-dependent use and do not impede the marine industrial activity that is the priority use of these WD shorelands. [Ord. 89-O-446 § 1.]
17.72.040 Public recreation (MR).
A. Purpose. The Chetco Estuary and adjacent beaches provide many areas of unique value and benefit as open space, for surf and jetty fishing, beach walking, swimming or just looking at the view. Within the marine activity zone, certain areas have been designated for these passive recreation uses, in areas safe from more intense port activity.
B. Uses Permitted with Standards. The following uses are permitted subject to standards pursuant to BMC 17.72.060:
1. Low intensity recreation;
2. Public parking for open use only, on the landward side of recreation areas;
3. Restoration (e.g., beach nourishment).
C. Conditional Uses. The following uses are permitted subject to receipt of a conditional use permit and standards listed in BMC 17.72.060:
1. Public restroom facilities if not provided in adjacent support area;
2. Stormwater outfalls, wastewater outfalls. [Ord. 89-O-446 § 1.]
17.72.050 Priority dredge material disposal sites (DMD).
A. Purpose. The purpose of DMD subareas in marine activity zones is to protect essential DMD sites from incompatible and preemptive uses that could limit their ultimate use for deposit of dredge material, and thereby limit the Port of Brookings and the Corps of Engineers from maintaining a navigable channel in the Chetco.
B. For subareas designated DMD, the following standards shall apply.
1. Structural improvements (e.g., construction of buildings) or other alteration of topography that would preempt use os the site for the amount of DMD planned will be prohibited until such time as alternative sites providing equivalent capacity to meet five-year disposal needs (within convenient reach of planned dredging projects) have been identified; and these alternate sites have been protected by plan amendment. [Ord. 89-O-446 § 1.]
17.72.060 Shoreland and aquatic development standards – Chetco Estuary.
A. These shoreland and aquatic standards are requirements that apply to all development in marine activity zones along the Chetco River. These standards are intended to establish the conditions under which activities permitted-with-standards and conditional uses are appropriate along the Chetco; to assure that property owners (both the Port of Brookings and private owners) know up-front the conditions under which they can expect development approval and to protect the unique economic, social and environmental values of the Chetco River Estuary.
B. Dock/Moorage/Port Facility Standards.
1. Moorage areas along the river or dike, as well as floating structures, will be constructed so as to minimize adverse effects on navigation, water currents, erosion, and accretion patterns, flushing characteristics, aquatic habitat and fishery resources.
2. Piers and floats shall extend no further out into the navigation channel than necessary to serve the activity planned. Size and shape of docks and piers will be limited to that necessary for the intended purpose.
3. New moorage areas excavated from existing shorelands will be constructed so as to cause a net increase in the water surface area of the river.
4. Multipurpose use of moorage, parking, cargo handling and storage facilities will be encouraged.
5. Design and construction measures will be identified that will minimize adverse impacts on adjacent natural and conservation areas to a level consistent with the resource capability and purpose of the affected management unit.
6. Facilities and locations for public viewing of the waterfront (e.g., walkways, seating, fishing areas) will be provided in areas where this use will not conflict with port or industrial operations.
7. Applicants proposing new marina facilities will present design and construction plans to minimize adverse impacts on water quality, navigation, sedimentation rates and patterns, aquatic habitat (e.g., intertidal structures or gravel beds that support algae growth), adjacent uses and aquatic areas.
8. Unless part of an approved fill project, materials extracted from aquatic areas shall be placed above mean higher high water in such a manner that water quality is not deteriorated during fish spawning and migratory seasons, and the floodways and water surface area of the estuary are not decreased.
9. Other policies in this section will also apply.
C. Pilings and Dolphins Standards.
1. Present design and construction plans that minimize adverse impacts on navigation, water circulation and transport, aquatic life, and habitat consistent with maintaining the cost effectiveness of the structure.
2. Demonstrate that the construction is the minimum necessary to accomplish the purpose.
D. Dike Standards.
1. The outside face of dikes shall be suitably protected to prevent erosion, and to maintain structural surface areas where silt and algae can accumulate during low water months.
2. New dike alignment and configuration shall not cause an increase in erosion or shoaling in adjacent areas or an appreciable increase in back-water elevation.
3. New diking of aquatic areas is subject to fill standards in subsection (K) of this section. New dikes for the purpose of flood protection will be placed on shorelands and not in aquatic areas.
E. Land Transportation and Utility Corridor Standards.
1. Land transportation and utility corridors will be located on WD, WR shoreland and aquatic areas only to serve WD, WR use or where no practical upland alternative exists.
2. Permanent parking will be located on the landward side of marine activity and developed property.
3. Roads and pedestrianways in the marine activity zone will assure convenient access to water-dependent uses.
F. Restoration Standards.
1. Restoration of shallow gravel bars that accumulate algae, silt, and amphipod populations during the summer season will be encouraged, in areas where such shallow water will not conflict with navigation or approved gravel extraction projects.
2. Restoration or improvement of the natural river channel to serve sport fishing and recreation will be encouraged, within the conditions outlined in the dredging standards in subsection (I) of this section.
3. The above active restoration will be allowed only if it will contribute to the long-term environmental, economic, and social value of the estuary or will restore areas of heavy erosion or sedimentation, degraded fish and wildlife habitat, anadromous fish spawning areas, abandoned diked estuarine waters for fish harvest or for human recreation; and the project identifies original conditions to be restored, the cause of the loss or degradation, and the site and actions necessary to respond to the causes and to achieve the restoration objective.
G. Shoreline Stabilization Standards.
1. Identified riparian vegetation will be maintained within the shoreland boundary, except the disturbance essential to approved development projects.
2. All areas along the riverbank disturbed or newly created by construction activity will be revegetated or given structural protection necessary to prevent erosion. Natural materials and vegetation will be preferred, except in cases where the force of river currents or other characteristics make structural materials preferable.
3. Only clean, durable riprap will be used. All piling and lumber treated with creosote or other protective material will be completely dry before use in or near the waterway.
H. Gravel Extraction Standards.
1. The operator of a surface mine shall present to the local government one copy each of a state-approved surface mining plan and a reclamation plan before commencing operations.
2. Applicants for mining and mineral extraction projects shall demonstrate that the activity is sited, and designed, and will be operated and maintained to minimize adverse impacts on the following:
a. Aquatic life and habitat, including but not limited to the spawning, rearing and passage requirements of anadromous fish;
b. Bird and wildlife habitat;
c. Hydraulic characteristics, including but not limited to circulation and the alteration of local currents that may affect adjacent shoreline areas by causing erosion, accretion, or increased flooding;
d. Water quality.
3. Unless part of an approved fill project, the materials extracted from aquatic areas shall be placed above mean higher high water in such manner that sediment will not enter or return to the waterway.
4. Gravel extraction operators will be regulated by other appropriate standards in this title, such as shoreline stabilization, dike restoration.
5. Gravel extraction will be regulated in accord with the state removal/fill permit and Corps of Engineers permit processes, and except under special circumstances, will avoid the spawning period and upstream migration of import fish species (see inventory).
I. Dredging Standards.
1. Dredging in aquatic areas shall only be permitted if required for:
a. Navigation or navigational access;
b. A permitted or conditional use that required an estuarine location;
c. An approved restoration project;
d. Mining/gravel extraction;
e. A permitted or conditionally permitted bridge footing excavation or utility foundation;
f. Maintenance of dikes, drainage ditches, or tidegates.
2. The above-mentioned dredging in aquatic areas shall be allowed only:
a. For the water-dependent uses outlined in the Chetco Estuary plan and this chapter that have been found to be important to the economic, social and environmental goals of the Brookings area;
b. When adverse impacts are minimized as outlined in this chapter;
c. When dredging is the minimum necessary to accomplish the purpose.
3. Erosion, sedimentation, increased flood hazard, and other undesirable changes in circulation shall be avoided in dredging and in the disposal of dredged materials. Tidal marshes, tidal flats, and other wetlands shall not be adversely affected.
4. The timing of dredging and disposal in aquatic areas shall be coordinated with state and federal resource agencies and/or will avoid the spawning period and upstream migration of important fish species to ensure adequate protection of estuarine resources (fish runs, spawning, benthic productivity, wildlife, etc.), and to minimize interference with commercial and recreational fishing activities.
5. Minor dredging of existing channels and drainageways will be limited to the amount necessary to maintain navigability and flow capacity (18 inches in the authorized channel and that necessary to serve small boat traffic upriver).
6. Adverse short-term effects of dredging and aquatic disposal such as turbidity, release of nutrients, heavy metals, sulfides, organic material or toxic substances, dissolved oxygen depletion, disruption of the food chain, loss of benthic productivity, and disturbance of fish runs and important localized biological communities shall be minimized on-site and in areas adjacent.
J. Dredge Material Disposal Standards.
1. Materials dredged from the Chetco are primarily fine silts and gravel for which there is a market demand, or which is valued for foundation material on shoreland development sites, or road construction. Standards listed here will regulate how dredged materials may be handled to maximize their value, and to minimize estuarine damage and public costs.
2. Priority dredge material disposal sites adequate to handle disposal needs of planned projects have been identified. DMD subareas adequate to handle five-year projected needs, in accord with these standards will be reserved for DMD use. Sites adequate to meet 20-year dredging needs will be identified and made part of long-term disposal plans.
3. Dredge material disposal will meet the following standards:
a. Dredging standards in subsection (I) of this section shall apply.
b. Dredge material shall not be disposed of or in an intertidal marsh or in estuarine waters unless part of an approved fill project.
c. Ocean disposal of dredge materials shall be allowed, provided interference with sport and commercial fishing is minimized, and disposal is confined to designated disposal sites.
d. Disposal at approved gravel excavation sites will be allowed, to allow for marketing of dredge materials.
e. Disposal of dredge material on designated DMD sites and on shoreland development sites will be allowed under the following conditions:
i. Riparian vegetation standards in subsection (G) of this section shall apply.
ii. Disposal causes no limiting of the floodway and the minimum necessary limits on the capacity of the 100-year floodplain.
iii. Floodplain regulations in existence under city ordinances will apply.
iv. Surface runoff from disposal shall be controlled to protect water quality and to prevent sedimentation of adjacent water or wetlands.
f. Temporary stockpile on shoreland sites not intended for immediate development will be allowed, until such time as WD project is approved.
g. Disposal allowed by these standards will be stabilized by vegetation or other acceptable means, as necessary to prevent wind and water erosion.
h. The final height and slope after each use of a DMD site shall be such that:
i. The site does not slough and erode into adjacent areas or into the water.
ii. Interference with capacity of 100-year floodplain is minimized.
K. Fill Standards.
1. The water surface area of the Chetco Estuary is limited, and heavy stream flows between November and April may cause flooding conditions. Therefore, fill of estuarine waters will be limited by and permitted only if the following standards are met:
a. Essential to a water-dependent use that requires an estuarine location;
b. Essential to a permitted bridge footing or utility foundation;
c. An approved restoration project;
d. Navigational structures and improvements;
e. Approach to low water bridges;
f. Flood control structures or structural shoreline stabilization;
g. A public need is demonstrated, as defined by official city, county or state legislation;
h. No alternative upland locations exist.
2. A fill shall be the minimum necessary to accomplish the purpose.
3. Where existing public access is reduced, suitable public access as part of a development project shall be provided; however, project fill requirements shall not be expanded in order to provide public access.
4. Approved fill projects will demonstrate how loss of water surface area will be mitigated by addition to the surface area or floodway, in the vicinity of the fill area, or by creation or restoration of an area of similar biological potential to ensure that the integrity of the estuarine ecosystem is maintained.
5. Any approved fills of intertidal areas will be subject to mitigation requirements of the Oregon Fill and Removal Law.
6. Fill activities in the aquatic conservation zone are permitted only as part of maintenance and protection of existing structures, and active restoration. [Ord. 89-O-446 § 1.]
17.72.070 Additional standards and review procedures for conditional uses in the marine activity zone.
A. Purpose of the Conditional Use Review and Standards. To evaluate and allow for activities not listed as permitted-with-standards, but that are within the purposes of the management unit and the capacity of estuarine and economic resources, and the development review procedures, shoreland and aquatic development standards, and the public notice procedures shall apply.
B. Conditional uses shall meet the following additional requirements:
1. Proposed activity will be evaluated in terms of standards, technical findings, agency recommendations, and permit requirements referenced above, to determine if it is within the purposes of the management unit or zone and subarea where it is located, and within on-site and adjacent resource capabilities.
2. Proposals in aquatic subareas judged by administrative officials to have major expected impacts may be required to provide findings establishing that the cumulative effects of all phases of the project are within the resource capabilities of estuarine resources.
3. Federal environmental impact statement or impact assessment may substitute for these requirements if available at the time of development review. [Ord. 89-O-446 § 1.]
17.72.080 Development review procedure.
A. Purpose. This section establishes a process for evaluating development proposals against various qualitative performance standards for certain estuarine and coastal shoreland areas. It is intended to increase predictability in the local decision-making process by informing the developer of the type of information to be provided, how the city or county will make the final decision, of third party technical expertise available, and of specific conditions to bring the proposed development into compliance with standards of this chapter.
B. Preapplication Conference. The applicant may request a preapplication conference that will be held within 10 working days of a request for such conference. The purpose of the conference shall be to acquaint the applicant with the substantive and procedural requirements of this chapter and the comprehensive plan, provide for an exchange of information that will be necessary to demonstrate that applicable standards have been met, to arrange such technical and design assistance as will aid the applicant, to indicate necessary state and/or federal permit requirements, and otherwise identify policies and ordinance requirements that create opportunities or pose constraints for the proposed development.
C. Application for Review.
1. The property owner or his/her representative may initiate a request for review and approval under this section by filing an application with the city manager.
2. Upon receipt of the request, the city manager shall prepare and deliver to the applicant within five working days a statement of whether the use or activity can be considered within the zoning district, whether it is permitted-with-standards or a conditional use, and if so, the following:
a. Specification of the relevant comprehensive plan policies, zoning and other ordinance standards and criteria;
b. Information to be supplied as listed in BMC 17.72.090;
c. Relevant state and federal requirements.
3. A completed application shall be accompanied by the following:
a. Specific information that has been identified as pertinent to the standards to be met by the project relevant portions of BMC 17.72.090;
b. A set of findings that demonstrate compliance with the applicable policies and standards (BMC 17.72.060 and 17.72.070);
c. Maps, photographs, or other descriptive material showing how the siting, design, operation and maintenance chosen by the applicant meets the policies, standards, and requirements.
D. Public Notice. If a public notice is required by the proposal being reviewed, the following procedure will apply:
1. After receiving a completed application, the city manager shall mail and shall have published a public notice of intent to make a decision on the application. Notice shall include the following:
a. Description and location of the proposed development;
b. That applicable comprehensive plan policies and ordinance standards are available at the planning department;
c. That interested parties have 20 days to submit comments and information relevant to the proposed development, giving reasons why the proposed development should not be approved, and preparing modifications necessary for approval;
d. Notice that only those parties who comment in writing or testify at a public hearing if required, will receive first class mailed notice of the decision on the proposed development; and
e. Notice of the right of the procedure for appeal.
2. Public notice shall be sent to the following:
a. Property owners within 250 feet of the property line of the proposed development;
b. State and federal resource agencies with mandates and authorities for planning, permit issuance and resource decision-making, including the following:
i. Oregon Department of Fish and Wildlife;
ii. Oregon Division of State Lands;
iii. Oregon Department of Land Conservation and Development;
iv. Oregon Department of Economic Development;
v. U.S. Fish and Wildlife Service;
vi. National Marine Fisheries Service;
vii. Environmental Protection Agency;
viii. U.S. Army Corps of Engineers.
c. Any other person who has requested in writing to receive notice of proposed actions under this chapter.
E. Decision.
1. Within 60 days of receiving a completed application, the planning commission shall approve, deny, or modify and approve the application. The decision shall be based on the application and the evidence and comments from interested parties. The decision shall provide findings of fact and conclusions that demonstrate that the applicable standards of BMC 17.72.070 have been met.
2. If the application is denied, the decision of subsection (E)(1) of this section shall also indicate, to the extent the evidence and date in the application will allow, whether or not the proposed development can be made to comply with the policies and standards in question, and what specific changes in the proposed development would be necessary.
3. The city manager shall notify the applicant and others entitled to notice of the disposition of the application. The notice shall indicate the effective date of the decision and describe the rights and procedures for appeal pursuant to Chapters 17.152 and 17.156 BMC. [Ord. 89-O-446 § 1.]
17.72.090 Technical findings.
Following is a list of the technical information that may be requested to describe the nature of the ecosystem and the expected impacts of a proposed development or restoration project. At the time of application for development review, BMC 17.72.080, the city manager will identify specifically which, if any, for the following information will be needed to evaluate the proposal. In most cases, only a portion of this information will be necessary to measure conformance with each standard:
A. Aquatic life forms and habitat, including information on habitat type and use (e.g., rearing, spawning, feeding/resting area, migration route), species present, seasonal abundance, sediment type and characteristics, vegetation present. Type of alteration, including information detailing the extent of alteration (e.g., area measurement, depths to which alteration will extend, volumes of materials removed and/or placed as fill), impacted species (including threatened or endangered species), life stages and life cycles affected with regard to timing of the proposed alteration.
B. Shoreland life forms and habitat, including information on habitat type and use (e.g., feeding, resting or watering areas, flyways), species present, seasonal abundance, soil types and characteristics, vegetation present. Type of alteration, including information detailing the extent of alteration (e.g., area measurement, extent of grading and excavation, removal of riparian vegetation), impacted species (including threatened or endangered species), life stages and life cycles affected with regard to timing of the proposed alteration.
C. Water quality, including information on increases in sedimentation and turbidity, decreases in dissolved oxygen concentration, changes in biological and chemical oxygen demand, contaminated sediments, alteration of salinity regime, disruption of natural-occurring water temperatures, changes due to reduction, diversion of impoundment of water.
D. Hydraulic characteristics, including information on changes in water circulation patterns, shoaling patterns, potential or erosion or accretion in adjacent areas, changes in the floodplain, decreases in flushing capacity or decreases in rate of water flow from reduction or diversion or impoundment of water sources.
E. Air quality, including information on quantities or emissions of particulates, expected inorganic and organic airborne pollutants.
F. If individual single-purpose docks and piers are involved, the feasibility of using community docks and moorage facilities and other alternatives such as mooring buoys, dryland storage and launching ramps.
G. If a water-dependent or water-related use in a rural area, alternative shoreland as sites in urban and urbanizable areas.
1. If in a rural area and a use other than water-dependent, water-related, agriculture, forestry or single-family residential on an existing lot, alternative upland locations.
H. Public need and gain that warrant the proposed action and adverse impacts.
I. Existing and potential water-dependent use of the site and parcels adjacent to the site.
J. Potential impacts may include environmental, social and economic impacts resulting from the items listed below.
1. Direct on-site and off-site, cause and effect impacts resulting from the principal development and occurring off-site. For example, changes in estuarine erosion/sedimentation rates and patterns caused by changes in water currents caused by the addition or removal of piling in the estuary.
2. The cumulative phases of multiphased development, to include mineral exploration and extraction.
3. The secondary “spin-off” developments that are customarily associated with and follow the principal development. For example, offshore oil and gas exploration and extraction requires onshore facilities such as platform and other equipment manufacturing, boat repair and moorage and housing. As another example, new residential communities in rural areas may spawn various retail commercial developments and new and upgraded transportation systems.
K. Methods to minimize impacts described in subsection (J) of this section. [Ord. 89-O-446 § 1.]