The Oregon Department of Land Conservation and Development (“DLCD”), the state agency charged with overseeing and implementing the state’s land use planning program, is proposing new regulations that would prevent developers from siting solar PV facilities on certain farmland deemed high value.  Over the last several years, opposition to the siting of solar PV facilities has increased, with land use advocates and farmers joining together to lobby for additional protections to the state’s agricultural lands.  The proposed rules amend the criteria for when a solar PV facility may be approved on “high-value farmland,” making less farmland eligible for new facilities.  The proposed rules also add clarifying language to the existing rules and extend certain wildlife habitat provisions.

The proposed solar rules would make the following changes:

Ban the siting of solar PV facilities on soils that are classified as prime, unique, Class I or II.  Under the current rules, there are limits on the size of solar PV facilities that may be sited on these soils without an Statewide Planning Goal Exception, but this proposed change would preclude the siting of solar PV facilities on prime, unique, Class I or II soils entirely.  Existing thresholds would remain for other “high-value farmland” that does not contain soils classified as prime, unique, Class I, or II.

Adopt language from 2018 temporary rule, clarifying that farmland acreage thresholds apply where the facility will “use, occupy, or cover” designated farmland.  This rule language was adopted in response to efforts by certain developers to remain below applicable farmland acreage thresholds by co-locating solar PV facilities with agricultural operations, such as apiaries.  The previous rules provided that a solar PV could not “preclude from use as a commercial agricultural enterprise”:  320 acres (nonarable lands), 20 acres (arable lands), or 12 acres (high-value farmland).  Some developers had argued successfully that a solar facility developed for “dual-use” would not “preclude” the entire site from use as a commercial agricultural enterprise.  In response to a particular Clackamas County decision on this issue, DLCD proposed and adopted a temporary rule clarifying that the acreage thresholds apply to facilities that “use, occupy, or cover” designated farmland.  In other words, when calculating the impact of the solar facility on agricultural lands, local jurisdictions are required to consider the entire footprint.  The proposed rules make this language permanent.  (Notably, the proposed rules include a provision that would allow counties to adopt land use provisions for “dual-use” development, but the rules prevent those provisions from allowing projects in excess of 20 acres.)

Remove the sunset provision from requirement to complete an assessment of impacts to wildlife habitat from solar facility development.  Under current rules, if a proposed solar PV facility is located on land where the potential exists for adverse effects to protected species or habitat, the applicant is required to conduct a site-specific assessment of the project site in coordination with state and federal wildlife agencies.  The proposed rules remove the 2022 sunset provision related to this requirement.

The proposed rules are available on DLCD’s website here, and a public hearing will be held on January 24, 2018 in Salem.  We are tracking this process closely and are happy to field questions about how the changes may affect your projects.