[co-author: Sudha Basu[1]]
For nearly a decade, tension has grown in Oregon between the desire for agricultural and wildlife conservation and the desire for renewable energy development. In 2023, the Oregon Legislature passed House Bill 3409, directing the Land Conservation and Development Commission (LCDC), the body that administers the state’s land use planning program, to propose rules to reduce conflict in siting solar generation facilities in Eastern Oregon. In June, LCDC did just that, adopting new Eastern Oregon Solar Siting Rules establishing two new permitting pathways for solar projects in Wasco, Jefferson, Deschutes, and Klamath Counties and eastward. A copy of the adopted rule changes is available here.[1]
Importantly, these rules do not affect existing local and Energy Facility Siting Council (EFSC) permitting pathways or the OAR 660-033-0130(38) siting standards. Rather, they create new permitting options for certain mid-sized projects by increasing the triggering thresholds for the application of certain land use standards. While promising in theory, the rules’ complexity and narrow applicability may limit their usefulness.
In Oregon, an exception is required for development that deviates from statewide land use planning goals, including goals 3 and 4 that are intended to preserve agricultural and forest lands. Under the new rules, certain mid-sized projects can avoid the need to secure these agricultural statewide planning goal exceptions. The key benefit of these new rules is to permit larger projects without triggering the need to obtain a statewide planning goal exception during land use permitting, which can be a heavy lift.
The new rules for siting on agricultural lands will be implemented in two ways, subject to significant county discretion.
The rules provide two different options for projects on agricultural lands, depending on how counties decide to respond.
- County Program: Under one option, counties may amend their comprehensive plans to designate areas or sites as suitable for solar development. See OAR 660-023-0195. Developers then may apply to site solar facilities in those areas or sites, subject to specified mitigation requirements. In counties adopting such a program, projects sited in such areas, and under the above acreage thresholds, do not require a goal 3 exception so long as they remain under specified acreage thresholds. The slightly higher goal exception thresholds under the county program mirror the mandatory EFSC jurisdictional acreage thresholds—thus, any project permitted locally under this new county program pathway need not be excepted from goal 3.
- Direct Application: Separately,through the “direct application” pathway, project applicants looking to develop projects on agricultural lands that are under the acreage thresholds may apply for county land use authorization directly under the new state standards set forth in OAR 660-033-0130(44). But counties may formally opt-out of this direct application pathway, which may limit this option’s availability.
The new goal 3 exception trigger thresholds under both of these programs are significantly larger than those under the existing standards but remain small relative to several large utility-scale projects in the state:
To reap the benefit of higher goal exception thresholds, projects must meet numerous siting criteria and prescriptive mitigation requirements.
The new rules require that projects on agricultural lands be sited in areas that meet a suite of siting criteria, including topographic, annual capacity factor, and transmission-like proximity standards. And projects must meet numerous mitigation requirements that are generally consistent with industry expectations but are more prescriptive than those typically required during county permitting processes.
The new rules also allow larger forest land projects to proceed without statewide planning goal 4 exceptions under existing permitting pathways.
The new rules also expressly increase the acreage threshold for triggering a goal 4 exception for projects on forest land in most of eastern Oregon from 10 to 240 acres. Unlike the new agricultural goal 3 thresholds, this new goal 4 exception threshold is not conditioned on meeting additional siting criteria or mitigation standards.
Upshots. The new rules may prove beneficial for a narrow set of mid-sized projects by obviating the need to obtain an onerous statewide planning goal exception. But that benefit is available only for those projects that are below the acreage thresholds and, if located on farm land, meet the siting criteria noted above and are located in a county that has chosen to allow such an option. And, even then, it may come at significant cost based on the prescriptive nature of the mitigation requirements and additional time and effort required for applications to demonstrate compliance with the new rules’ standards, particularly for projects on agricultural lands. Moreover, the rules leave much implementation discretion to the counties, including the ability to completely opt-out of either permitting pathway, further limiting their potential applicability.
Thus, it remains to be seen whether HB 3409’s intent will be realized and if developers choose to utilize these new pathways. Developers wanting to learn more about these rules or evaluate whether potential projects may be a good fit can contact Stoel Rives for assistance.
[1] Sudha is a rising 3L at Georgetown Law Center and was a 2L summer associate at Stoel Rives LLP.
[2] The regulatory citations herein correspond to the numbering scheme in the proposed rules, which may change post-adoption.
