This post was co-authored by Stoel Rives summer associate Ken Pearson.
On May 23, the Oregon Department of Land Conservation and Development made permanent the Temporary Amendments to OAR 660-033-0130, promulgated on January 29, 2019, which restrict the extent to which counties may approve construction of new commercial solar facilities on high-value farm land. You can find the final rules here and our earlier discussion of the amendments here, here, and here. As predicted, the rules were adopted with few changes.
The rule amendments include two controversial changes. The first change is that the rules now limit the amount of EFU land a solar facility may use, occupy, or cover. Previously, solar facility restrictions focused on the amount of agriculture land precluded from use, but there was no agreement among DLCD, counties, and stakeholders over the meaning of “preclude.” Under the new rules, local jurisdictions are required to consider the entire facility footprint when calculating the size of the facility for purposes of determining compliance with applicable land use standards.
The second, and perhaps more controversial, change is the insertion of rule (h)(E), which, with few exceptions, prohibits solar projects on “the best” of the high-value soils, defined by 660-033-0020(8)(a) as “Prime, Unique, Class I or Class II soils” or simply (8)(a) soils. This map from the Oregon Working Lands database helps demonstrate the scope of the restriction; the first four categories are defined as (8)(a) soils.
The new rules contain a narrow “dual-use” exception that allows counties to site solar facilities on more than 12 acres on certain non-8(a), high-value farmland if other criteria are met. However, counties are under no obligation to create a “dual-use” permitting pathway.
Solar industry trade organizations, developers, and operators were understandably opposed to the change. However, a wide range of environmental justice and community advocacy groups also opposed the amendments, arguing that it would limit opportunities for new community solar projects. Conversely, vineyard owners, agriculture industry organizations, and wildlife protection groups argued that the restrictions did not go far enough.
It is important to understand what the amendment does—and doesn’t—do. The (h)(E) amendment prohibits the development of commercial solar facilities in 86% of the Willamette Valley, even under the dual-use exception. Developers may still seek an exception to Statewide Planning Goal 3 (Preservation of Agricultural Lands), although this is likely not practicable in most instances. Developers may also utilize the portion of a tract of land that is not (8)(a) soil. The State, seeking to illustrate its position on the impact on qualified facilities/community solar, points to a Marion County case study in Appendix E as evidence that there are still viable tracts throughout the Willamette Valley.
With Oregon’s ambitious renewable energy goal, there is no question that these amendments present a major hurdle to solar developers, particularly in the Willamette Valley. Nonetheless, even under the new rules, there are still opportunities to develop community solar in the Willamette Valley, and larger-scale solar projects elsewhere in Oregon on sites not composed of the “best of the best” soils.