ORS 836.623: Local compatibility and safety requirements more stringent than state requirements; criteria; water impoundments; report to federal agency; application to certain activities.

(1) A local government may adopt land use compatibility and safety requirements that are more stringent than the minimum required by Land Conservation and Development Commission rules for issues other than water impoundments where such regulations are within its authority. Local government action regarding new water impoundments shall comply with subsection (2) of this section. If a local government receives information in a hearing on a land use application alleging that public safety requires a higher level of protection than the minimum established in commission rules and if the information is supported by evidence, the governing body shall consider the information and adopt findings explaining the bases for any decision regarding the need for more stringent requirements. Land use requirements regarding safety and compatibility shall consider the effects of mitigation measures or conditions that could reduce safety risks and incompatibility. (2) The following requirements and conditions shall apply to safety risks associated with potential bird strike hazards resulting from new water impoundments proposed in close proximity to an airport identified under ORS 836.610 (1): (a) No new water impoundments of one-quarter acre or larger shall be allowed: (A) Within an approach corridor and within 5,000 feet from the end of a runway; or (B) On land owned by the airport or airport sponsor where the land is necessary for airport operations; (b) A local government may adopt regulations that limit the establishment of new water impoundments of one-quarter acre or larger for areas outside an approach corridor and within 5,000 feet of a runway only where the local government adopts findings of fact, supported by substantial evidence in the whole record, that the impoundments are likely to result in a significant increase in hazardous movements of birds feeding, watering or roosting in areas across the runways or approach corridors. The local government shall consider the effects of mitigation measures or conditions that could reduce safety risks and incompatibility; (c) A local government may adopt regulations that limit the establishment of new water impoundments of one-quarter acre or larger between 5,000 feet and 10,000 feet of a runway outside an approach corridor and between 5,000 feet and 40,000 feet within an approach corridor for an airport with an instrument approach only where the local government adopts findings of fact, supported by substantial evidence in the whole record, that the impoundments are likely to result in a significant increase in hazardous movements of birds feeding, watering or roosting in areas across the runways or approach corridors. The local government shall consider the effects of mitigation measures or conditions that could reduce safety risks and incompatibility; (d) If a local government receives information and supporting evidence in the hearing process that alleges a significant increase in hazardous movements of birds feeding, watering or roosting in areas across the runways or approach corridors, the local government shall consider the information and evidence and adopt findings as required by paragraphs (b) and (c) of this subsection explaining the bases for any decision regarding the need to limit the establishment of new water impoundments of one-quarter acre or larger; and (e) Notwithstanding the requirements of paragraphs (a) to (c) of this subsection, wetlands mitigation required for projects located within the areas identified in paragraphs (a) to (c) of this subsection shall be authorized where it is not practicable to provide off-site mitigation. (3) A local government that receives information under subsection (2)(d) of this section shall forward the information to the Federal Aviation Administration for review and comment prior to any final action by the local government to impose a compatibility or safety standard more stringent than required by rule of the Land Conservation and Development Commission. (4) Subsection (2) of this section does not apply to a storm water management basin established by an airport identified under ORS 836.610 (1) or agricultural water impoundments in which the water is used directly for growing crops such as cranberries or rice. (5) Subsection (2)(a) to (c) of this section does not apply to seaplane landing areas. (6) As used in this section, “significant” means a level of increased flight activity by birds across approach corridors and runways that is more than incidental or occasional, considering the existing ambient levels of flight activity by birds in the vicinity. [1997 c.859 §9]