Last year we wrote about new legislation that would affect the siting of photovoltaic solar power generation facilities. The Oregon Legislature passed House Bill 3409 over the summer and Gov. Tina Kotek signed it in late July. The legislation seeks to promote the development of solar facilities by tasking the Land Conservation and Development Commission (LCDC) with adoption of rules that identify the characteristics of land in central and eastern Oregon that are (1) best suited for the development of solar facilities and (2) avoid negative impacts on certain resources. Those rules are due by July 1, 2025. If adopted by local communities, they should provide a more certain path to ensuring compliance with Goal 5.
As a reminder, there are 19 Statewide Land Use Planning Goals, all passed between 1974 and 1976, that address land-use planning, resource conservation, and development. At issue here is Goal 5, which requires local governments to identify and plan for the protection of particular resources in their comprehensive plans and land use regulations. Those Goal 5 resources include:
- riparian corridors,
- wetlands,
- wildlife habitat,
- scenic, cultural, and historic areas, and
- agricultural lands.
Once Goal 5 resources are identified, they are generally protected from development, unless the developer obtains an “exception” to Goal 5, under rules promulgated by the Department of Land Conservation and Development (DLCD).
At the direction of the LCDC, the DLCD is revising its rules to allow local governments to designate certain lands where solar development could be permitted without a goal exception. In essence, the rules will provide a safe harbor if certain lands are identified as suitable for solar development and meet specific solar siting criteria.
On Nov. 2, 2023, the LCDC established a rules advisory committee (RAC) of 17 committee members who represent a range of stakeholders and will help identify suitable lands and criteria for siting solar facilities. The RAC is administered by the DLCD, and it has been tasked with advising the department on which lands should be regarded as suitable for solar development, as well as what criteria might render otherwise suitable lands unavailable for development. The DLCD is charged with considering that advice when it initiates the notice and comment process in the fall. The rules will likely be presented to the LCDC by the end of this year.
The RAC has met three times since it was formed in Christmas Valley, Burns, and Hermiston to gather input and discuss various aspects of solar siting. Community members may view RAC meetings either in person or online; links and subsequent meeting summaries are provided at www.oregon.gov. An introductory meeting was held on March 12, 2024, and the first substantive meeting was held on April 18. To determine suitability, the RAC is considering the (1) annual solar utility-scale capacity factor, (2) distance from high-voltage transmission lines, and (3) slope of land. Criteria that may be used to exclude suitable lands from development include the presence of certain (1) designated habitats, (2) soil classifications, (3) productive forests, or (4) other Goal 5 resources.
Local governments may also be allowed to exclude specific lands. Discussions are ongoing and these criteria could change, but the current exclusions could eliminate most lands from being found suitable. The DLCD expects the RAC will meet another four to six times this year, at various locations, for roughly three hours of facilitated time apiece. Some meetings may include tours of energy facilities and sites.
As noted above, any adopted rules are currently slated to be voluntary for Oregon counties. If a county does not develop a Goal 5 inventory of lands suitable for solar development, a developer can go through that suitability analysis as part of the land use application for project development. A developer who chooses to do so would not need to go through the Goal 3 or Goal 4 exception processes. This may sound like a boon to developers, but keep in mind that there is no legal precedent regarding any Goal 5 process, which leaves a great deal of uncertainty as to how it might be received by any county or upon appeal.
The clear intent of HB 3409 was to promote solar development in central and eastern Oregon. However, it remains to be seen whether the rules adopted by the DLCD will allow counties to designate a significant number of lands for solar development and, if they do, whether counties will take advantage of the new rules to designate those lands; or whether developers will be able to use Goal 5 as a pathway to permitting new projects.
Sara Sayles is a Schwabe, Williamson & Wyatt shareholder. Contact her at 503-796-2486 or ssayles@schwabe.com. Ken Pearson is a Schwabe, Williamson & Wyatt associate. Contact him at 503-796-2063 or kpearson@schwabe.com. This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations. The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the DJC guarantees the accuracy or completeness of any information published herein. Copyright © 2024 BridgeTower Media. All Rights Reserved.
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