Department of Land Conservation and Development 635 Capitol Street
NE, Suite 150
Salem, Oregon 97301-2540 Phone: 503-373-0050
Fax: 503-378-5518 www.oregon.gov/LCD
May 9, 2019 TO: Land Conservation and Development Commission FROM:
Jim Rue, Director Jon Jinings, Community Services Specialist Rob
Hallyburton, Rural Policy Analyst SUBJECT: Agenda Item 8, May
23-24, 2019, LCDC Meeting
RULEMAKING – SOLAR POWER GENERATION FACILITIES ON HIGH-VALUE
FARMLAND
AGENDA ITEM SUMMARY
This agenda item is for the Land Conservation and Development
Commission (LCDC or commission) to consider and possibly adopt
permanent amendments to Oregon Administrative Rules (OAR)
660-033-0130(38), which contains the criteria for conditional use
approval of photovoltaic solar power generating facilities on lands
zoned exclusive farm use (EFU), and related amendments. The
proposed amendments limit solar development on certain high-value
farmland soils located in EFU zones the Willamette Valley and
elsewhere in Oregon. Furthermore, the exceptions process will
continue be available for an applicant to make a case that its
specific project should be allowed to be sited on the highest class
soils. The proposal, in Attachment A, and it includes a provision
that would limit siting of new solar facilities on Class I and II
soils and those classified as prime or unique by the Natural
Resource Conservation Service. Regulations for siting a solar
facility of up to 12 acres on Class III and IV high-value farmland
are unchanged. The new limitation would be partially offset by an
allowance for projects that are larger than what is currently
allowed on high-value farmland when the project includes farm use
on the solar-facility site. The proposed rule is the same as the
text adopted by the commission on January 2019 as a temporary rule.
For further information about this report, please contact Jon
Jinings, Community Services Specialist, at
[email protected].
Page 2 of 8
A. REASON FOR RULEMAKING PROJECT
The need for the rulemaking was discussed in the department’s
September 13, 2018, report to the commission regarding initiation
of the rulemaking project. That report stated:
In 2011, LCDC adopted rule amendments regulating photovoltaic solar
power generation facilities in exclusive farm use zones… The
amendments included a requirement that limited photovoltaic solar
power generation facilities to 12 acres on high-value farmland
soils, 20 acres on arable farmland that is not high-value, and 100
acres on nonarable farmland. Approval of projects larger than these
thresholds requires an exception to Statewide Planning Goal 3. The
amendments were adopted to discourage development on highly
productive farmland and to encourage their placement on lands with
lower agricultural or wildlife habitat value. During the original
process, the RAC spent seven months diligently considering
multiple, complex siting issues associated with establishing
commercial solar power generation facilities on Oregon’s farm and
ranch lands. The RAC members unanimously agreed that there is a
place for solar development within Oregon’s agricultural areas. The
RAC members also agreed that protecting Oregon’s best farmland
soils and valuable wildlife habitat makes good policy sense. Beyond
those two points there were few easy answers. Sincere concerns and
a variety of perspectives made striking a balance difficult. At the
end of the RAC’s final meeting, the members agreed that, even
though complete consensus was not present, forwarding the draft
rule to the commission was appropriate. The final result was
adoption of OAR 660-033-0130(38) in October 2011. The commission
has made minor adjustments in response to various statute changes
(e.g., increasing the project-size threshold on nonarable lands to
250 and finally 320 acres, high-value farmland in an American
Viniculture Area, etc.). However, the majority of rule language
remains unchanged and un-reviewed since the original adoption. The
commission received an October 17, 2016, letter from the Oregon
Board of Agriculture expressing concern over how the solar rule was
being applied with regard to high-value farmland and requesting the
commission engage in an evaluation of OAR 660-033-0130(38).
Discussion between department staff and staff of the Oregon
Department of Agriculture, Oregon Department of Energy and Oregon
Department of Fish and Wildlife indicated that a review of the rule
was a worthwhile endeavor. This and
Agenda Item 8 May 23-24, 2019 – LCDC Meeting
Page 3 of 8
other input from stakeholders led to the matter being included on
the department’s 2017-2019 policy agenda.
Also, for reasons explained in a July 12, 2018 department report to
the commission,1 the commission adopted a temporary amendment to
OAR 660-033-0130 in July 2018 to address a specific issue of rule
interpretation. The purpose of this rulemaking project includes
consideration of whether to adopt those changes as permanent rules.
The project also included consideration of whether to repeal or
change a sunset provision relating to a wildlife-habitat
conservation section of the rule that applies to nonarable land.
Therefore, even though the sunset does not occur until January 1,
2022, considering it now is recognition of efficiency; including it
in this process will prevent the need to have a single-purpose rule
amendment later. B. POLICY BACKGROUND
The department’s report to the commission for the January 2019
hearing included background regarding the reason for the rulemaking
project, current land use policies regarding solar facilities on
farmland, Oregon’s farmland protection policies, and Oregon’s solar
power policies. That background is provided in Attachment B, on
pages 1-6.2 C. NEED FOR THE AMENDMENTS
The department’s report to the commission for the January 2019
hearing provided information regarding the approximate number of
solar facilities proposed statewide as of November 2018 (Attachment
B, page 7). The department proposed, and the commission agreed,
that the existing rule has allowed more development on high-value
farmland than was intended when the commission adopted the rule in
2011. D. RULEMAKING PROCESS
The commission initiated the rule amendment project at its
September 2018 meeting and appointed a rulemaking advisory
committee (RAC) to advise the Department of Land Conservation and
Development (DLCD or department) in formulating recommended
administrative rule amendments. The department met with the RAC
four times and had follow-up communications after the last meeting.
Additional background on the RAC process and outcome is provided in
Attachment B, pp. 8–9. 1
https://www.oregon.gov/LCD/Commission/Documents/LCDC_Meetings/2018-07/2018-
07_Item_6_StaffReport-TempRulemaking_Solar.pdf 2 The full staff
report and other materials from the January 2019 meeting are
available at
https://www.oregon.gov/lcd/Commission/Pages/LCDC-Meeting-January.aspx.
Page 4 of 8
The commission considered proposed amendments to OAR 660-033-0130
at its January 2019 hearing. During the hearing, the commission
received a request under ORS 183.335(4) to postpone the date of
rule adoption and the commission honored the request. Consequently,
the commission voted to adopt a temporary rule. The department has
completed the notice to affected property owners required by ORS
197.047 (Ballot Measure 56).
PROPOSED RULE AMENDMENTS
Attachment A contains the proposed amendments to OAR 660-033-0130.
As previously discussed, the proposed amendments are the same as
what the commission adopted as temporary rules in January 2019. The
amendments include changes to sections (17), (22), and (38), with
most of the changes in section (38). The amendments include several
minor changes to correct inconsistent use of terms in the existing
rule. A. USE, OCCUPY, OR COVER
The department identified misapplications of provisions regarding
to the acreage thresholds established in the rule in local land use
decisions. Specifically, the bolded language in OAR 660-033-0130
below was at issue:
Permanent features of a power generation facility shall not
preclude more than 12 acres from use as a commercial agricultural
enterprise unless an exception is taken pursuant to ORS 197.732 and
OAR chapter 660, division 4. * * *
This language has applied to commercial energy facility development
on high-value farmland, including solar development since at least
1994. It was deliberately established to limit commercial energy
development allowed through a conditional use proceeding. A nearly
identical provision, different only in specifying 20 acres rather
than 12 acres, was established for non-high-value farmland. Both
thresholds, as well as a limitation designed for nonarable lands,
were incorporated into the original solar rule. The department
became aware of two different interpretations that served to
undermine these longstanding rule provisions. The first such
interpretations posited that, if there was no commercial
agricultural enterprise being conducted on the property, such an
activity could not be “precluded” and, therefore, a larger solar
project could be allowed. To the extent it occurred, this type of
application occurred more often in central and eastern Oregon and
did not always involve high-value farmland. The second
interpretation was that, if at least some level of agricultural
activity was maintained, commercial agricultural enterprise was not
precluded and, therefore, a larger solar project could be allowed.
To the extent counties used this interpretation, it occurred most
commonly in the Willamette Valley and southern Oregon.
Agenda Item 8 May 23-24, 2019 – LCDC Meeting
Page 5 of 8
Because these interpretations were inconsistent with the rule
intent and purpose, the commission adopted the following language
as a temporary rule:
(17) Permanent features of a power generation facility shall not
[preclude] use, occupy, or cover more than 12 acres [from use as a
commercial agricultural enterprise] unless an exception is taken
pursuant to ORS 197.732 and OAR chapter 660, division 4
The “use, occupy or cover” language appears at every relevant
location in OAR 660- 033-0130. The department recommends the
commission adopt this in permanent rule. As explained above, this
revision better explains the maximum size of facilities that may be
permitted as a conditional use. B. DUAL-USE
Dual-use, sometimes referred to as “co-location” or “agrivoltaics”
is the concept that a specific site will be used for both solar
energy generation and farm use. First and foremost, nothing in the
existing rules prohibit or even discourage dual-use. This
development arrangement is and has been available. Therefore, the
policy question is not whether dual-use should be allowed but
whether dual-use should be incentivized. The proposed amendments
allow a county flexibility to establish a dual-use option that
could allow a larger project (up to 20 acres) on high-value
farmland with appropriate safeguards and assurances. A county would
accomplish this through a legislative amendment to its land use
regulations. The department proposed the rule also include a 3 MW
limit for dual-use projects, but the commission concluded the
20-acre maximum size to be a sufficient limitation. The commission
established the 20-acre threshold based on the understanding that
12- acre projects in the Willamette Valley commonly produce a
maximum output of 2.0-2.2 MW, and that approximately 16-18 acres
was needed for 3 MW projects (the typical maximum size for projects
proposed in the Willamette Valley). The commission thus considered
20 acres sufficient to provide a needed development footprint while
also accommodating farm equipment and agricultural practices. A
provision identifying the county option to adopt a dual-use credit
is proposed at OAR 660-033-0130(38)(g)(C). Attachment A, p. 2-3.
The amendment, currently effective as a temporary rule
provides:
(g) [(f)] For high-value farmland described at ORS 195.300(10), a
photovoltaic solar power generation facility shall not [preclude]
use, occupy, or cover more than 12 acres [from use as a
commercial
Agenda Item 8 May 23-24, 2019 – LCDC Meeting
Page 6 of 8
agricultural enterprise] unless [an exception is taken pursuant to
ORS 197.732 and OAR chapter 660, division 4 or the requirements of
paragraph (G) are met. The governing body or its designate must
find that]:
(A) The provisions of paragraph (h)(H) are satisfied; or (C) A
county adopts, and an applicant satisfies, land use
provisions authorizing projects subject to a dual-use development
plan. Land use provisions adopted by a county pursuant to this
paragraph may not allow a project in excess of 20 acres. Land use
provisions adopted by the county must require sufficient assurances
that the farm use element of the dual-use development plan is
established and maintained so long as the photovoltaic solar power
generation facility is operational or components of the facility
remain on site. The provisions of this subsection are repealed on
January 1, 2022.
A definition for dual-use is established at OAR
660-033-0130(38)(c). Attachment A, p. 1. The proposed definition
is:
(c) “Dual-use development” means developing the same area of land
for both a photovoltaic solar power generation facility and for
farm use.
C. PROTECTION OF HIGH-VALUE FARMLAND SOILS
The commission identified adequate protection of high-value
farmland as the primary focus of this rulemaking project. The
proposal focuses on the protection of certain high- value soils.
Rather than proposing all high-value farmland be unavailable for
solar development through a conditional use proceeding, the
department recommended language that would give additional
protections for the best soils. The proposal relies on the highest
class soils identified in the definition of high-value farmland at
OAR 660- 033-0020(8)(a), which includes:
(A) Irrigated and classified prime, unique, Class I or II; or (B)
Not irrigated and classified prime, unique, Class I or II.
These Class I and II, prime and unique soil types are common in the
Willamette Valley but do not constitute the entirety of high-value
farmland soils located in the region. They are present but less
common in other regions of the state. Prime farmland is common in
areas of cultivated agriculture around the state, but much of it is
classified as prime only if the land is irrigated. Overall, these
soil types represent subset of lands zoned EFU statewide and they
are irreplaceable.
Agenda Item 8 May 23-24, 2019 – LCDC Meeting
Page 7 of 8
In the temporary rules, the commission adopted the additional
protection for the highest class of soils but modified the
department’s proposal with respect to the cable collection systems.
Specifically, the temporary rule and proposed amendments make Class
I and II, prime and unique soils ineligible for solar facilities
through the conditional use process. With respect to the definition
of a “photovoltaic solar power generation facility” in OAR
660-033-0130(38)(f) provides that “photovoltaic solar power
generation facility” includes, but is not limited to:
[A]n assembly of equipment that converts sunlight into electricity
and then stores, transfers, or both, that electricity. This
includes photovoltaic modules, mounting and solar tracking
equipment, foundations, inverters, wiring, storage devices and
other components. Photovoltaic solar power generation facilities
also include electrical cable collection systems connecting the
photovoltaic solar generation facility to a transmission line, all
necessary grid integration equipment, new or expanded private roads
constructed to serve the photovoltaic solar power generation
facility, office, operation and maintenance buildings, staging
areas and all other necessary appurtenances. * * * (emphasis
added.)
The commission did not believe that the electrical lines connecting
the solar facility to the transmission line should be included in
the soils limitation because it would unnecessarily limit siting
options and increase the number of exceptions required. The
temporary rule therefore excludes connecting lines from the soils
provision. The proposed rule recommends such an exclusion as
well:
Except for electrical cable collection systems connecting the
photovoltaic solar generation facility to a transmission line, the
project is not located on those high-value farmland soils listed in
OAR 660-033-0020(8)(a).
A provision removing the highest class soils from candidacy for
simple conditional use proposals is included in the draft rule at
OAR 660-033-0130(38)(h)(E). Attachment A, p. 3. Corresponding
provisions are included at OAR 660-033-0130(38)(i)(A), as well as
OAR 660-033-0130(j)(A). Attachment A, p. 5 and p. 6, respectively.
D. WILDLIFE HABITAT PROTECTION
During the original solar rulemaking of 2011, RAC members expressed
concern that wildlife habitat that was not inventoried in local
comprehensive plans could be vulnerable to conflicting uses. While
it was generally appreciated wildlife habitat is a Goal 5 resource
and the rule under consideration helped to implement Goal 3, the
commission responded by adopting language that is included in the
draft rule as OAR 660-033-0130(38)(j)(G). Attachment A, p. 7. This
provision facilitates coordination with the Oregon Department of
Fish and Wildlife (ODFW) and, if necessary, can lead to
project-specific mitigation requirements.
Agenda Item 8 May 23-24, 2019 – LCDC Meeting
Page 8 of 8
The commission also continued to recognize that updating local
wildlife programs under Goal 5 and OAR chapter 660, division 23
remained the most desirable way to handle conflicts between
development and wildlife. It was hoped that local plans would be
updated and protections for wildlife would not be needed in the
commission’s agricultural lands rule. With this in mind,
applicability of these provisions was scheduled to expire in 2022.
In the years following the original rule adoption very little time,
energy and funding have been available to help counties update
local wildlife programs. Therefore, the sunset provision is
proposed to be removed. Please see Attachment A, p. 7.
WRITTEN COMMENTS
Comments received since the January meeting are provided in
Attachment C. Most of the comments were received at or immediately
before the May 7, 2019, deadline for written comments. Therefore,
the department is in the process of reviewing the comments and
determining if it will propose any rule revisions to the
commission. The department will provide a supplemental report
addressing the comments and identifying additional revisions before
the commission meeting.
RECOMMENDED ACTION/CONCLUSION
The department recommends that the commission approve the proposed
amendments to OAR 660-033-0130 as contained in the temporary rules
adopted by the commission on January 25, 2019. Recommended motion:
I move the commission adopt amendments to OAR chapter 660, division
33 as recommended by the department and shown in Attachment A.
Optional approval motion: I move the commission adopt amendments to
OAR chapter 660, division 33 as recommended by the department in
Attachment A with the following changes: [identify changes].
ATTACHMENTS
A. Proposed Amendments to OAR 660-033-0130 B. Excerpts from January
10, 2019 DLCD report to LCDC C. Written comments received since
January 2019 and by the May 7, 2019,
deadline
Additions bold and underscored, deletions [struck] Attachment A –
Page 1
Proposed Amendments to OAR 660-033-0130
"note: these proposed amendments are the same as those adopted by
the commission as a temporary rule at its January 2019
meeting"
* * *1 2
(17) Permanent features of a power generation facility shall not
[preclude] use, occupy, or3 cover more than 12 acres [from use as a
commercial agricultural enterprise] unless an exception is 4 taken
pursuant to ORS 197.732 and OAR chapter 660, division 4. A power
generation facility 5 may include on-site and off-site facilities
for temporary workforce housing for workers 6 constructing a power
generation facility. Such facilities must be removed or converted
to an 7 allowed use under OAR 660-033-0130(19) or other statute or
rule when project construction is 8 complete. Temporary workforce
housing facilities not included in the initial approval may be 9
considered through a minor amendment request. A minor amendment
request shall be subject 10 to 660-033-0130(5) and shall have no
effect on the original approval. 11
12 * * *13
14 (22) Permanent features of a power generation facility shall not
[preclude] use, occupy, or15 cover more than 12 acres [from use as
a commercial agricultural enterprise] unless an exception is 16
taken pursuant to ORS 197.732 and OAR chapter 660, division 4. A
power generation facility 17 may include on-site and off-site
facilities for temporary workforce housing for workers 18
constructing a power generation facility. Such facilities must be
removed or converted to an 19 allowed use under OAR
660-033-0130(19) or other statute or rule when project construction
is 20 complete. Temporary workforce housing facilities not included
in the initial approval may be 21 considered through a minor
amendment request. A minor amendment request shall be subject 22 to
660-033-0130(5) and shall have no effect on the original approval.
23
24 * * *25
26 (38) A proposal to site a photovoltaic solar power generation
facility shall be subject to the27 following definitions and
provisions: 28
29 (a) “Arable land” means land in a tract that is predominantly
cultivated or, if not currently30 cultivated, predominantly
comprised of arable soils. 31
32 (b) “Arable soils” means soils that are suitable for cultivation
as determined by the governing33 body or its designate based on
substantial evidence in the record of a local land use application,
34 but “arable soils” does not include high-value farmland soils
described at ORS 195.300(10) 35 unless otherwise stated. 36
37
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 2
(c) “Dual-use development” means developing the same area of land
for both a photovoltaic 1 solar power generation facility and for
farm use. 2
3 (d) [(c)] “Nonarable land” means land in a tract that is
predominantly not cultivated and4 predominantly comprised of
nonarable soils. 5
6 (e) [(d)] “Nonarable soils” means soils that are not suitable for
cultivation. Soils with an NRCS7 agricultural capability class
V–VIII and no history of irrigation shall be considered nonarable
in 8 all cases. The governing body or its designate may determine
other soils, including soils with a 9 past history of irrigation,
to be nonarable based on substantial evidence in the record of a
local 10 land use application. 11
12 (f) [(e)] “Photovoltaic solar power generation facility”
includes, but is not limited to, an13 assembly of equipment that
converts sunlight into electricity and then stores, transfers, or
14 both, that electricity. This includes photovoltaic modules,
mounting and solar tracking 15 equipment, foundations, inverters,
wiring, storage devices and other components. Photovoltaic 16 solar
power generation facilities also include electrical cable
collection systems connecting the 17 photovoltaic solar generation
facility to a transmission line, all necessary grid integration 18
equipment, new or expanded private roads constructed to serve the
photovoltaic solar power 19 generation facility, office, operation
and maintenance buildings, staging areas and all other 20 necessary
appurtenances. For purposes of applying the acreage standards of
this section, a 21 photovoltaic solar power generation facility
includes all existing and proposed facilities on a 22 single tract,
as well as any existing and proposed facilities determined to be
under common 23 ownership on lands with fewer than 1320 feet of
separation from the tract on which the new 24 facility is proposed
to be sited. Projects connected to the same parent company or
individuals 25 shall be considered to be in common ownership,
regardless of the operating business structure. 26 A photovoltaic
solar power generation facility does not include a net metering
project 27 established consistent with ORS 757.300 and OAR chapter
860, division 39 or a Feed-in-Tariff 28 project established
consistent with ORS 757.365 and OAR chapter 860, division 84.
29
30 (g) [(f)] For high-value farmland described at ORS 195.300(10),
a photovoltaic solar power31 generation facility shall not
[preclude] use, occupy, or cover more than 12 acres [from use as a
32 commercial agricultural enterprise] unless [an exception is
taken pursuant to ORS 197.732 and 33 OAR chapter 660, division 4 or
the requirements of paragraph (G) are met. The governing body 34 or
its designate must find that]: 35
36 (A) The provisions of paragraph (h)(H) are satisfied; or37
38 (B) A county adopts, and an applicant satisfies, land use
provisions authorizing39 projects subject to a dual-use development
plan. Land use provisions adopted by a 40 county pursuant to this
paragraph may not allow a project in excess of 20 acres. Land 41
use provisions adopted by the county must require sufficient
assurances that the farm 42 use element of the dual-use development
plan is established and maintained so long 43
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 3
as the photovoltaic solar power generation facility is operational
or components of 1 the facility remain on site. The provisions of
this subsection are repealed on January 2 1, 2022. 3
4 (h) The following criteria must be satisfied in order to approve
a photovoltaic solar power5 generation facility on high-value
farmland described at ORS 195.300(10). 6
7 (A) The proposed photovoltaic solar power generation facility
will not create8 unnecessary negative impacts on agricultural
operations conducted on any portion of9 the subject property not
occupied by project components. Negative impacts could10 include,
but are not limited to, the unnecessary construction of roads
dividing a field or11 multiple fields in such a way that creates
small or isolated pieces of property that are12 more difficult to
farm, and placing photovoltaic solar power generation facility
project13 components on lands in a manner that could disrupt common
and accepted farming14 practices;15
16 (B) The presence of a photovoltaic solar power generation
facility will not result in17 unnecessary soil erosion or loss that
could limit agricultural productivity on the subject18 property.
This provision may be satisfied by the submittal and county
approval of a soil19 and erosion control plan prepared by an
adequately qualified individual, showing how20 unnecessary soil
erosion will be avoided or remedied [and how topsoil will be
stripped,21 stockpiled and clearly marked]. The approved plan shall
be attached to the decision as a22 condition of approval;23
24 (C) Construction or maintenance activities will not result in
unnecessary soil compaction25 that reduces the productivity of soil
for crop production. This provision may be satisfied26 by the
submittal and county approval of a plan prepared by an adequately
qualified27 individual, showing how unnecessary soil compaction
will be avoided or remedied in a28 timely manner through deep soil
decompaction or other appropriate practices. The29 approved plan
shall be attached to the decision as a condition of
approval;30
31 (D) Construction or maintenance activities will not result in
the unabated introduction32 or spread of noxious weeds and other
undesirable weed species. This provision may be33 satisfied by the
submittal and county approval of a weed control plan prepared by
an34 adequately qualified individual that includes a long-term
maintenance agreement. The35 approved plan shall be attached to the
decision as a condition of approval;36
37 (E) Except for electrical cable collection systems connecting
the photovoltaic solar38 generation facility to a transmission line
The project is not located on those high-value 39 farmland soils
listed in OAR 660-033-0020(8)(a); 40
41
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 4
(F) [(E)] The project is not located on those high-value farmland
soils listed in OAR 660-1 033-0020(8)(b)-(e) or arable soils unless
it can be demonstrated that: 2 3
(i) Non high-value farmland soils are not available on the subject
tract; 4 5 (ii) Siting the project on non high-value farmland soils
present on the subject 6 tract would significantly reduce the
project’s ability to operate successfully; or 7 8 (iii) The
proposed site is better suited to allow continuation of an existing
9 commercial farm or ranching operation on the subject tract than
other possible 10 sites also located on the subject tract,
including those comprised of non high-11 value farmland soils; and
12
13 (G) [(F)] A study area consisting of lands zoned for exclusive
farm use located within one 14 mile measured from the center of the
proposed project shall be established and: 15 16
(i) If fewer than 48 acres of photovoltaic solar power generation
facilities have 17 been constructed or received land use approvals
and obtained building permits 18 within the study area, no further
action is necessary. 19 20 (ii) When at least 48 acres of
photovoltaic solar power generation facilities have 21 been
constructed or received land use approvals and obtained building
permits, 22 either as a single project or as multiple facilities
within the study area, the local 23 government or its designate
must find that the photovoltaic solar [energy] 24 power generation
facility will not materially alter the stability of the overall
land 25 use pattern of the area. The stability of the land use
pattern will be materially 26 altered if the overall effect of
existing and potential photovoltaic solar [energy] 27 power
generation facilities will make it more difficult for the existing
farms and 28 ranches in the area to continue operation due to
diminished opportunities to 29 expand, purchase or lease farmland
or acquire water rights, or will reduce the 30 number of tracts or
acreage in farm use in a manner that will destabilize the 31
overall character of the study area. 32
33 (H) [(G)] A photovoltaic solar power generation facility may be
sited on more than 12 34 acres of high-value farmland described in
ORS 195.300(10)(f)(C) without taking an 35 exception pursuant to
ORS 197.732 and OAR chapter 660, division 4, provided the land: 36
37
(i) Is not located within the boundaries of an irrigation district;
38 39 (ii) Is not at the time of the facility’s establishment, and
was not at any time 40 during the 20 years immediately preceding
the facility’s establishment, the place 41 of use of a water right
permit, certificate, decree, transfer order or ground water 42
registration authorizing the use of water for the purpose of
irrigation; 43 44
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 5
(iii) Is located within the service area of an electric utility
described in ORS 1 469A.052(2); 2 3 (iv) Does not exceed the
acreage the electric utility reasonably anticipates to be 4
necessary to achieve the applicable renewable portfolio standard
described in 5 ORS 469A.052(3); and 6 7 (v) Does not qualify as
high-value farmland under any other provision of law; or 8
9 (i) [(g)] For arable lands, a photovoltaic solar power generation
facility shall not [preclude] use, 10 occupy, or cover more than 20
acres [from use as a commercial agricultural enterprise unless 11
an exception is taken pursuant to ORS 197.732 and OAR chapter 660,
division 4]. The governing 12 body or its designate must find that
the following criteria are satisfied in order to approve a 13
photovoltaic solar power generation facility on arable land: 14
15
(A) Except for electrical cable collection systems connecting the
photovoltaic solar 16 generation facility to a transmission line,
the project is not located on those high-value 17 farmland soils
listed in OAR 660-033-0020(8)(a); 18
19 (B) [(A)] The project is not located on those high-value
farmland soils listed in OAR 660-20 033-0020(8)(b)-(e) or arable
soils unless it can be demonstrated that: 21
22 (i) Nonarable soils are not available on the subject tract; 23
24 (ii) Siting the project on nonarable soils present on the
subject tract would 25 significantly reduce the project’s ability
to operate successfully; or 26 27 (iii) The proposed site is better
suited to allow continuation of an existing 28 commercial farm or
ranching operation on the subject tract than other possible 29
sites also located on the subject tract, including those comprised
of nonarable 30 soils; 31
32 (C) [(B)] No more than 12 acres of the project will be sited on
high-value farmland soils 33 described at ORS 195.300(10) [unless
an exception is taken pursuant to 197.732 and 34 OAR chapter 660,
division 4]; 35 36 (D) [(C)] A study area consisting of lands zoned
for exclusive farm use located within one 37 mile measured from the
center of the proposed project shall be established and: 38
39
(i) If fewer than 80 acres of photovoltaic solar power generation
facilities have 40 been constructed or received land use approvals
and obtained building permits 41 within the study area no further
action is necessary. 42 43
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 6
(ii) When at least 80 acres of photovoltaic solar power generation
facilities have 1 been constructed or received land use approvals
and obtained building permits, 2 either as a single project or as
multiple facilities, within the study area the local 3 government
or its designate must find that the photovoltaic solar [energy] 4
power generation facility will not materially alter the stability
of the overall land 5 use pattern of the area. The stability of the
land use pattern will be materially 6 altered if the overall effect
of existing and potential photovoltaic solar [energy] 7 power
generation facilities will make it more difficult for the existing
farms and 8 ranches in the area to continue operation due to
diminished opportunities to 9 expand, purchase or lease farmland,
acquire water rights or diminish the number 10 of tracts or acreage
in farm use in a manner that will destabilize the overall 11
character of the study area; and 12
13 (E) [(D)] The requirements of OAR [660-033-0130(38)(f)]
660-033-0130(38)(h)(A), (B), (C) 14 and (D) are satisfied. 15
16 (j) [(h)] For nonarable lands, a photovoltaic solar power
generation facility shall not [preclude] 17 use, occupy, or cover
more than 320 acres [from use as a commercial agricultural
enterprise 18 unless an exception is taken pursuant to ORS 197.732
and OAR chapter 660, division 4]. The 19 governing body or its
designate must find that the following criteria are satisfied in
order to 20 approve a photovoltaic solar power generation facility
on nonarable land: 21 22
(A) Except for electrical cable collection systems connecting the
photovoltaic solar 23 generation facility to a transmission line,
the project is not located on those high-value 24 farmland soils
listed in OAR 660-033-0020(8)(a); 25
26 (B) [(A)] The project is not located on those high-value
farmland soils listed in OAR 660-27 033-0020(8)(b)-(e) or arable
soils unless it can be demonstrated that: 28 29 (i) Siting the
project on nonarable soils present on the subject tract would
significantly 30 reduce the project’s ability to operate
successfully; or 31 32 (ii) The proposed site is better suited to
allow continuation of an existing commercial 33 farm or ranching
operation on the subject tract as compared to other possible sites
also 34 located on the subject tract, including sites that are
comprised of nonarable soils; 35 36 (C) [(B)] No more than 12 acres
of the project will be sited on high-value farmland soils 37
described at ORS 195.300(10); 38 39 (D) [(C)] No more than 20 acres
of the project will be sited on arable soils[unless an 40 exception
is taken pursuant to ORS 197.732 and OAR chapter 660, division 4];
41 42 (E) [(D)] The requirements of OAR [660-033-0130(38)(f)(D)]
660-033-0130(38)(h)(D) are 43 satisfied; 44
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 7
1 (F) [(E)] If a photovoltaic solar power generation facility is
proposed to be developed on 2 lands that contain a Goal 5 resource
protected under the county's comprehensive plan, 3 and the plan
does not address conflicts between energy facility development and
the 4 resource, the applicant and the county, together with any
state or federal agency 5 responsible for protecting the resource
or habitat supporting the resource, will 6 cooperatively develop a
specific resource management plan to mitigate potential 7
development conflicts. If there is no program present to protect
the listed Goal 5 8 resource(s) present in the local comprehensive
plan or implementing ordinances and 9 the applicant and the
appropriate resource management agency(ies) cannot successfully 10
agree on a cooperative resource management plan, the county is
responsible for 11 determining appropriate mitigation measures; and
12 13 (G) [(F)] If a proposed photovoltaic solar power generation
facility is located on lands 14 where, after site specific
consultation with an Oregon Department of Fish and Wildlife 15
biologist, it is determined that the potential exists for adverse
effects to state or federal 16 special status species (threatened,
endangered, candidate, or sensitive) or habitat or to 17 big game
winter range or migration corridors, golden eagle or prairie falcon
nest sites or 18 pigeon springs, the applicant shall conduct a
site-specific assessment of the subject 19 property in consultation
with all appropriate state, federal, and tribal wildlife 20
management agencies. A professional biologist shall conduct the
site-specific 21 assessment by using methodologies accepted by the
appropriate wildlife management 22 agency and shall determine
whether adverse effects to special status species or wildlife 23
habitats are anticipated. Based on the results of the biologist’s
report, the site shall be 24 designed to avoid adverse effects to
state or federal special status species or to wildlife 25 habitats
as described above. If the applicant’s site-specific assessment
shows that 26 adverse effects cannot be avoided, the applicant and
the appropriate wildlife 27 management agency will cooperatively
develop an agreement for project-specific 28 mitigation to offset
the potential adverse effects of the facility. Where the applicant
and 29 the resource management agency cannot agree on what
mitigation will be carried out, 30 the county is responsible for
determining appropriate mitigation, if any, required for the 31
facility. 32 33 [(G) The provisions of paragraph (F) are repealed
on January 1, 2022.] 34
35 (k) An exception to the acreage and soil thresholds in
subsections (g), (h), (i), and (j) of this 36 section may be taken
pursuant to ORS 197.732 and OAR chapter 660, division 4. 37 38 (l)
[(i)] The county governing body or its designate shall require as a
condition of approval for a 39 photovoltaic solar power generation
facility, that the project owner sign and record in the deed 40
records for the county a document binding the project owner and the
project owner's 41 successors in interest, prohibiting them from
pursuing a claim for relief or cause of action 42 alleging injury
from farming or forest practices as defined in ORS 30.930(2) and
(4). 43 44
Additions to existing rule bold and underscored, deletions [struck]
Attachment A – Page 8
(m) [(j)] Nothing in this section shall prevent a county from
requiring a bond or other security 1 from a developer or otherwise
imposing on a developer the responsibility for retiring the 2
photovoltaic solar power generation facility. 3 4 (n) [(k)] If ORS
469.300(11)(a)(D) is amended, the commission may re-evaluate the
acreage 5 thresholds identified in subsections [(f)] (g), [(g)] (i)
and [(h)] (j) of this section. 6 7
Department of Land Conservation and Development 635 Capitol Street
NE, Suite 150
Salem, Oregon 97301-2540 Phone: 503-373-0050
Fax: 503-378-5518 www.oregon.gov/LCD
FROM: Jim Rue, Director Jon Jinings, Community Services Specialist
Rob Hallyburton, Rural Policy Analyst
SUBJECT: Agenda Item 6, January 24-25, 2019, LCDC Meeting
RULEMAKING – SOLAR FACILITIES ON HIGH-VALUE FARMLAND
EXCERPTS
II. BACKGROUND
* * *
B. CURRENT POLICY REGARDING SOLAR FACILITIES ON FARMLAND
Oregon Revised Statutes (ORS) 215.213(2)(g) and 215.283(2)(g) list
“commercial utility facilities for the purpose of generating power
for public use by sale” as a use that county may permit on land
zoned EFU. That means that a county may list the use in its EFU
zone and accept an application for a proposed facility. The county
may approve the application if it finds the proposal complies with
relevant criteria in statute, administrative rule, and the county’s
zoning ordinance. The rule does not apply to siting of non-
commercial facilities that a farm may construct for onsite
use.
Item 8 Attachment B January 2019 Staff Report Excerpts
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 2 of 11
ORS 215.213(2)(g) and 215.283(2)(g) also provide that, “if the area
zoned for exclusive farm use is high-value farmland, a photovoltaic
solar power generation facility may be established as a commercial
utility facility as provided in ORS 215.447.” ORS 215.447 provides
criteria that are only relevant to an area known as the Columbia
Valley viticultural area, so it is not relevant to this rulemaking
project. As explained in the previous subsection, the commission
has adopted rules interpreting and implementing ORS 215.213(2)(g)
and 215.283(2)(g) as they apply to solar facilities. The rules
provide different criteria depending on the capability of the land
for farm use. The most capable, “high-value farmland,” is the most
limited in terms of the size of a solar-facility development, while
the least capable, “nonarable land,” allows the largest facilities.
C. OREGON’S FARMLAND PROTECTION POLICIES
Oregon’s policy regarding farmland protection begins in statute; SB
101 in 1973 included the following policy, which has remained
unchanged since.
ORS 215.243 Agricultural land use policy. The Legislative Assembly
finds and declares that: (1) Open land used for agricultural use is
an efficient means of conserving natural resources that constitute
an important physical, social, aesthetic and economic asset to all
of the people of this state, whether living in rural, urban or
metropolitan areas of the state. (2) The preservation of a maximum
amount of the limited supply of agricultural land is necessary to
the conservation of the state’s economic resources and the
preservation of such land in large blocks is necessary in
maintaining the agricultural economy of the state and for the
assurance of adequate, healthful and nutritious food for the people
of this state and nation. (3) Expansion of urban development into
rural areas is a matter of public concern because of the
unnecessary increases in costs of community services, conflicts
between farm and urban activities and the loss of open space and
natural beauty around urban centers occurring as the result of such
expansion. (4) Exclusive farm use zoning as provided by law,
substantially limits alternatives to the use of rural land and,
with the importance of rural lands to the public, justifies
incentives and privileges offered to encourage owners of rural
lands to hold such lands in exclusive farm use zones.
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 3 of 11
Section (2) is the most relevant portion of this policy for the
present rulemaking project. While it does not commit the state to
no farmland loss, it does encourage minimal conversion. The
commission must assess whether the existing rule preserves “a
maximum amount” of farmland, and, if not, what amendments would
achieve conformity with this policy. Oregon’s land use policy
regarding farmland is further explained in Statewide Planning Goal
3, “Agricultural Land,” which is, “To preserve and maintain
agricultural lands.” The goal also provides:
Agricultural lands shall be preserved and maintained for farm use,
consistent with existing and future needs for agricultural
products, forest and open space and with the state's agricultural
land use policy expressed in ORS 215.243 and 215.700.
This policy is carried out through EFU zoning, which protects lands
for agricultural use by limiting the nonfarm uses that may be
developed. The first task to protect farmland is to identify and
zone farmland while providing land in other zones that allow those
uses limited on farmland. However, zoning land EFU only protects
that land for farm use, if the land use regulations prevent
development of uses that convert farmland or conflict with farm
use. The second task, then, is thoughtful limitation of and siting
standards for non-farm uses in the EFU zone to carry out the
state’s farmland policies. This task necessarily includes
consideration of the needs expressed in other state land use
planning goals, and other state policies, such as those related to
solar discussed below. D. OREGON’S SOLAR POWER POLICY
Oregon has no comprehensive policy regarding solar power. However,
mention of renewable energy is found in multiple locations in state
law and Oregon’s Climate Agenda. These provisions do not
specifically address where a solar facility is allowed or
prohibited, but in some instances the laws and programs do
influence the solar industry’s demand for certain locations.
Renewable Portfolio Standard The Oregon Legislature enacted targets
for how much of the electricity we use will come from renewable
resources.1 The most recent legislative action on this front came
as SB 1547 (2016). The provisions of this law are codified in
statute (ORS chapter 469A), which, among other things, call for 50
percent of Oregon’s electricity needs to be
1 Renewable energy sources include wind; solar photovoltaic and
solar thermal; wave, tidal, and ocean thermal; geothermal; certain
biomass products, including woody biomass and animal manure;
landfill gas and other biogases; small hydropower; and thermal
energy.
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 4 of 11
met by renewables by 2040. The statute does not set standards for
individual renewable energy sources and it does not establish a
requirement or preference for generation sources located within the
state. In other words, Oregon’s RPS could be entirely satisfied by
out of state renewable energy sources.
Community Solar Program SB 1547 also directed the Public Utility
Commission of Oregon (PUC) to adopt rules establishing a program
for the procurement of electricity from community solar projects.2
The law identifies several items to be included in the PUC rules,
including provisions to require electric companies to enter into a
20-year power-purchase agreement with a certified community solar
project and to determine a methodology by which 10 percent of the
total generating capacity of the community solar projects operated
under the program will be made available for use by low-income
residential customers of electricity. The PUC is also obligated
determine the resource value of solar energy. Furthermore, the
bill, now at ORS 757.386(3), provides:
A community solar project: (a) Must have at least one solar
photovoltaic energy system with a
minimum generating capacity of 25 kilowatts; (b) Must be located in
this state; and (c) May be located anywhere in this state.
The PUC rulemaking is ongoing. Specifically, the PUC has yet to
“determine the resource value of solar energy.” However, rules have
been adopted to implement other provisions of SB 1547. PUC has
restricted the initial program capacity tier of community solar
projects to 2.5 percent of the 2016 systems peak load of affected
utilities (Portland General Electric (PGE), Pacificorp and Idaho
Power Company). OAR 860-088-0060.3 Cumulatively, this amounts to
161 megawatts (MW). Individually, the three affected utilities
would have an obligation to purchase 23.29 MW (PGE), 16.15 MW
(Pacificorp) and 0.82 MW (Idaho Power Company) from community solar
projects. Eventually the obligations increase to a total of 93.15
MW (PGE), 64.60 MW (Pacificorp) and 3.27 MW (Idaho Power Company).
The PUC has the authority to adopt successive program capacity
tiers. OAR 860-088-0060(3).
2 ORS 757.386(1)(a) provides that: “‘Community solar project’ means
one or more solar photovoltaic energy systems that provide owners
and subscribers the opportunity to share the costs and benefits
associated with the generation of electricity by the solar
photovoltaic energy systems.” 3
https://secure.sos.state.or.us/oard/view.action?ruleNumber=860-088-0060
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 5 of 11
PUC rules also establish that, to participate in the Community
Solar Program, a project must be located within the Oregon service
territory of an electric company and have a nameplate capacity of 3
MW or less. OAR 860-088-0090(1) provides that:
Subject to the conditions in this rule, a retail electricity
customer of an electric company may acquire an ownership interest
in, or subscribe to, one or more projects that are located in the
service territory of the electric company serving the retail
electricity customer.
Read together, these PUC rule provisions establish that a community
solar project must be located in the service territory of the
specific utility whose customers are accessing the project, rather
than “anywhere in this state” as identified in SB 1547. PUC Order
No. 17-2324 (June 2017) provides the following explanation:
Paragraphs 22(3)(b) and (c) of SB 1547 state that a project
participating in the community solar program "[m]ust be located in
this state; and [m]ay be located anywhere in this state." Under the
proposed rules, projects must be located within the service
territory of an electric company and participants are limited to
projects located in their same contiguous service territory. At
hearing, Staff explained these limitations are based on practical
and policy reasons. These include aligning the program with net
metering principles, reflecting the vision of "community," and
ensuring that bill credits accurately reflect the resource value of
solar. Staff further cautioned that these limitations ensure this
program is not used by larger customers in lieu of direct access,
which has built-in protections to ensure costs are not shifted to
customers who remain on the utility system. Stakeholders respond
that the restriction to a participant’s same "contiguous" service
territory severely limits project options for some customers,
particularly PacifiCorp customers in load pockets. Staff recommends
in its final comments removing the "contiguous" requirement but
retaining the constraint that a project be located in a
participant’s same service territory.
Oregon Climate Agenda Governor Brown issued the Oregon Climate
Agenda: A Strong, Innovative, Inclusive Economy While Achieving
State Climate Emissions Goals on November 18, 2018. The agenda
includes “Strategies to Achieving Our Climate and Economic Goals,”
which address a range of climate-change mitigation measures.
Strategies in the agenda may be relevant to this rulemaking
project. 4
https://apps.puc.state.or.us/orders/2017ords/17-232.pdf
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 6 of 11
Strategy Three is to “decarbonize the electricity system.” The full
strategy states: “Achieve the state’s renewable energy targets and
encourage grid modernization while maintaining affordable and
competitive electricity rates.” This strategy relates to the
Renewable Portfolio Standard and other clean-energy initiatives. It
does not address solar energy specifically or include any
statements that would guide facility-siting decisions. Strategy
Four of the agenda is to “expand access to clean energy services.”
The full strategy states:
Expand opportunities for residential, municipal, and commercial
customers to access clean energy services from their utilities
while ensuring utility regulation is designed to support the
utility system and does not preference new customers over existing
ones.
This strategy does not address solar power separately from other
sources of renewable energy except to recognize increasing demand
for rooftop collectors. The strategy does not include statements or
policies that guide siting decisions. Strategy Seven is “Invest in
Climate Solutions That Foster Resilience.” The full strategy
states: “Pursue climate solutions that benefit rural communities
and Tribes, support working lands, and foster resilience to climate
change.” One of the objectives enumerated under this strategy
states that the Governor is committed to:
Working with landowners, producers, and stakeholders to keep
agricultural lands in production and avoid the conversion to more
emissions-intensive uses.
In a section titled “Oregon’s Leadership and Legacy,” the agenda
states:
Oregon has already taken important steps to reduce climate
emissions and build a clean energy economy. Some of the
foundational legislation addressing climate change in Oregon
includes: • Land use: Oregon’s nationally renowned land use
planning program
(SB100) laid the groundwork for mitigation and adaptation in Oregon
for 45 years by creating dense, livable communities and protecting
farms, forests, and natural areas from development.
The Governor’s climate change agenda reflects the tension between
farmland protection and promotion of a robust, growing solar-energy
industry in Oregon. Like the Governor, the department supports both
and has recommended a rule that it believes appropriately considers
both objectives.
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 7 of 11
None of these sources include requirements or guidance that
specifically affect solar- facility siting decisions, but they do,
as a group, show a commitment on the part of the state of Oregon to
promote clean energy. This is important context for the commission
to consider in this rulemaking effort. E. NEED FOR THE
AMENDMENTS
Information collected by the department indicates that as many as
140 proposals for photovoltaic solar power generation facilities
have been submitted for approval. Applications for conditional use
approval account for most of the requests, but a few applications
have been for exceptions to Goal 3, and a very small number have
been, or are being, prepared for EFSC review. Only a small number
of projects have actually been constructed. According to
information the department provided to the RAC at its November 2018
meeting * * *, 86 projects have been proposed in Willamette Valley
EFU zones (including those under review, already approved, and
already constructed). Eighty of these are on high-value farmland.
If constructed, these 80 projects would occupy 957 acres. This is
the best data the department could collect, but not all information
has been reported by counties. About 53 projects in EFU zones have
been proposed in eastern and central Oregon and three have been
submitted in southern Oregon. If constructed, these 53 projects
would occupy over 17,000 acres. Although Willamette Valley counties
contain the majority of the state’s proposals, the amount of land
proposed to be occupied is far less than what is proposed in
eastern and central Oregon. In eastern Oregon, it appears that less
than five percent of proposals would be sited on high-value
farmland. The projects approved on high-value farmland account for
a small percentage of the high-value farmland in the state and for
any individual county. However, the department believes that this
is not the appropriate measure for whether the agricultural land
use policies to preserve “a maximum amount of the limited supply of
agricultural land” and for farmland to be “preserved and maintained
for farm use, consistent with existing and future needs for
agricultural products” have been advanced. Using similar reasoning,
high-value farmland accounts for only a small percentage of land
available for solar facility development. The department
understands, however, that this may not be important when proximity
to a power-transmission facility with adequate capacity is
important in facility-siting decisions. The report to the
commission explaining the proposed new solar rule in June 2011
states that the provisions of what is now the existing rule were
“deliberately structured to discourage development on high-value
farmland soils and to encourage their placement on lands with the
least importance for either agriculture or wildlife habitat.”
Approval for conversion of nearly 1,000 acres of high-value
farmland in a relatively short period of
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 8 of 11
time suggests that the existing rule has not achieved this purpose.
The department heard from RAC members that not all of the approved
projects will be built, and that projected demand will not lead to
considerably more acreage converted than is already approved. The
department notes, however, that the solar power-generating industry
is young and the laws and incentives that influence where projects
get built continue to evolve, making forecasts tenuous. The
majority of the approved solar power-generating capacity in the
state is in eastern and central Oregon and not on high-value
farmland, suggesting that perhaps the rule has achieved its purpose
of directing projects to appropriate areas. The department does not
agree with this view because the impacts on high-value farmland in
certain local agricultural areas have been disproportionate and are
obscured by examination of statewide data. In the context of the
policy to preserve that maximum amount of a limited supply of
farmland, the department has found that the existing rule is too
permissive on high-value farmland. F. ADVISORY COMMITTEE
PROCESS
The RAC was comprised of 18 members representing solar power
development, farming, county, utility, land-use, and tribal
interests. The Oregon departments of Agriculture, Energy, and Fish
and Wildlife also had seats on the committee. The commission chair
served as the LCDC liaison. The member representing tribal
interests did not attend any of the meetings or otherwise
participate, and the department considered this a withdrawal from
the committee. This left 17 members involved in the deliberations.
The RAC met four times from early October to early December 2018.
The agendas included a tour of a 12-acre solar facility near
Sheridan, discussion of solar- development requirements (especially
regarding proximity to transmission facilities with adequate
capacity), the impact of solar development on farms and farming,
state land use policy, county application review procedures, and
appropriate rule provisions addressing the various interests
represented on the RAC. At its first meeting, the RAC agreed to a
set of operating principles that included the committee purpose,
the organizational structure, attendance at and conduct of
meetings, and formulation of a committee recommendation. The RAC
members understood that the committee’s advice was to the
department. The principles called for the RAC to “strive to operate
by consensus,” and defined “consensus” as “all RAC members can live
with the recommendation or decision.” A RAC member stating that
they could “live with” an amendment did not mean that the member
supported the proposal, but rather that they did not oppose it.
That is, a member may be neutral, or even have significant
concerns, on many of the proposed amendments, but lack of dissent
would contribute to consensus on that item.
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 9 of 11
Just about every agenda item over the course of 18 hours of meeting
took longer than expected. This resulted in RAC consideration of
draft rule language being delayed until the final meeting. The
department prepared revised draft rule amendments based on the RAC
input at that meeting and circulated it to committee members for
comment via email. Those comments were considered by the department
in development of the recommended rule amendments. The department
attempted to communicate with individual RAC members subsequent to
the final committee meeting. These discussions were to ensure
accurate identification of the members’ various positions on the
recommended draft rule amendments. Most of the RAC members chose to
engage in the requested communication. G. ADVISORY COMMITTEE
OUTCOME
Few proposed amendments found consensus among the 17 attending RAC
members. The positions of those members who did not indicate
concurrence with the proposed language are discussed in the
following section of this report. The ODOE member has indicated to
the department that his department has no position on the various
rule amendment proposals. Several amendments proposed by the
department in early drafts were unpopular and are not included the
department’s recommendation; those deletions received consensus
support. * * * III. EFFECTS OF PROPOSED AMENDMENTS
A. AVAILABILITY OF HIGH-VALUE FARMLAND Most of the foreseeable
projects that would be affected by the proposed amendments are
located in the northern Willamette Valley and generate power that
is sold to PGE. The proposed amendments, if adopted, will reduce
the amount of land eligible for siting under the conditional use
process. The commission has received testimony that the changes
would amount to a prohibition on new facilities. The department
assembled a case study to help determine the effect of the proposed
limitation on new solar facility siting on certain soils. The cases
are in northern Marion County. This area was chosen because it has
proven to be a desirable location for solar facilities (Marion
County has approved several facilities within the study area); this
is presumably due to proximity to transmission infrastructure such
as substations. In
Agenda Item 10 Attachment B
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 10 of 11
addition, the department has access to land-ownership information
for Marion County, which is needed to identify high-value
farmland.5 The maps in Attachment E show locations that would be
eligible for approval of a solar facility under the proposed rules.
That is, the locations include 12 acres or more of high- value
farmland that is not Class 1 or 2, prime, or unique soil. This is
not intended to be an inventory of eligible sites, but rather an
indication of whether sites that could potentially gain approval
for a solar facility exist. The department concludes that such
sites do exist and the proposed rule amendments would not
constitute a prohibition on new facilities on high-value farmland.
The department does not suggest any of the case-study sites are
available for lease or within the preferred distance of existing
infrastructure, but it is an area that received enough approvals
that the county chose to prohibit any more. Compare the proposal
with OAR 660-023-0180, “Mineral and Aggregate Resource,” which
allows another natural resource – aggregate – on high-value
farmland, but not everywhere and only under certain conditions.
This balancing of the needs of one resource – farmland – with other
needed resources has precedent in Oregon’s land use regulatory
scheme. For the reasons stated in subsection II.E, “Need for the
Amendments,” above, there is evidence that the existing rule does
not strike the appropriate balance.
H. COMMUNITY SOLAR PROGRAM
The department and commission also received comments and testimony
that the proposed rule amendments will hamper implementation of
Oregon’s Community Solar Program.6 These comments do not explain
why the program cannot be carried out in locations other than the
best farmland, and they are based on an assumption that the rules
amount to ban on new facilities on farmland in the Willamette
Valley. The comments were made in reaction to an earlier draft of
the rule amendments. Attachment B, pp. 1–24. The department’s
research has not found a reason that the proposed rule amendments
would undermine implementation of the Community Solar Program. The
program focuses on 25 Kw to 3 MW projects, up to the limits
explained in subsection II.D.2 of this report. Therefore,
facilities will range from small installations that can fit into
urban setting up to arrays larger than 12 acres. The EFU rule,
therefore is relevant to siting facilities under the program; as
explained in earlier sections of this report, the rule will 5
High-value farmland is partly defined as a “tract” that is
“predominantly composed” of certain soils that are especially
suitable for agriculture. A “tract” is the entirety of the
contiguous ownership. Therefore, defining high-value farmland
required information on the boundary of a contiguous ownership and
then determining whether the tract is more than 50 percent
high-value farmland soils. 6
https://edocs.puc.state.or.us/efdocs/HAH/um1930hah111115.pdf
May 23-24, 2019 – LCDC Meeting January Report Excerpts
Page 11 of 11
continue to provide for sites that can be approved for solar
facilities in EFU zones, even on high-value farmland. Formerly
approved sites could be eligible for use in the Community Solar
Program, as well.
Item 8 Attachment C
ATTACHMENT C - PAGE 1
From: Lisa Sherrill To: LCD Rule Comment Subject: Fwd: OAR
660-033-0130 Proposed amended rule Adoption May 23, 2019 Meeting
Date: Tuesday, April 23, 2019 4:26:42 PM Attachments:
image.png
Department of Land Conservation and Development
635 Capitol St. NE
Dear DLCD,
I received a notice stating that our EFU status is going to be
changed by Jackson county taking EFU land on conditional land use
permits notice for solar corporations. At this time, Jackson County
has ignored conditional use permit language on several permits that
are in the area that I live in. How is giving Jackson County the
right to lower the value of my land and allow solar corporations to
utilize the surrounding property a good thing for the neighborhood
I live in. Jackson County allows Knife River and Mountain View
Paving to operate off a conditional use permit from as early as
1998 with conditions in the county does not enforce (3750 Kirtland
Road, 7700 and 7505 Blackwell Road in Central Point, Oregon). I
always wonder how companies who is polluting the air, the water
ways (extremely high Ph levels in water pits at the South Parker
Pits, turbidity in the Rogue River and Bear Creek from debris and
high Ph levels) and filling mining pits with dirty fill dirt that
kill wildlife.
I am tired of Jackson County just ignoring the challenges they
already have and not dealing with them or stopping people from
polluting and ruining our beautiful area where I have lived for
over 20 years. For some reason I feel something very corrupt is
happening in Jackson County and perhaps conditional use permits
should not be allowed in Jackson County until all permits can be
enforced by the County, DOGOMI, and other governmental
agencies.
Please do not allow Jackson County to change a lands EFU standing
to allow solar and the glare/eye sore it will create, not to
mention lowering our property values.
ATTACHMENT C - PAGE 2
Nothing has changed. They still dump dirty fill and they still dump
wet cement into the water pits.
This is all very upsetting and it would be great if the DLCD could
not allow Jackson County any more additional power to change EFU
standing and if someone would actually enforce the current
conditional land use permits.
Lisa Sherrill 541-601-8052 7471 Gold Ray Road Central Point, OR
97502
[email protected]
ATTACHMENT C - PAGE 3
From: glenn stacey To: LCD Rule Comment Subject: OAR 660-033-0130
Proposed amended rule Adoption May 23,2019 Date: Thursday, April
25, 2019 12:22:56 PM
Department of Land Conservation and Development 635 Capitol St. NE
Salem, OR 07301
Dear DLCD, I am writing in response to the Notice of Rule making
Concerning Jackson County being able to issue Conditional Land use
permits to Solar Generating Facilities on EFU Lands. I am writing
as a witness of the fact that my Community, Our unincorporated
Community has been enduring the wrong doings of Knife River, And
Recently Mountain view paving. Our Jackson County Not enforcing
Conditions of Conditional land use permits. Putting fraudulent
Governing entity programs that do not exist put in place to pigeon
hole our communities complaints, such as DEQ Noise, Non existent
since 1991. Permits Like Mountain view paving (File # 439
16-00119-ZON) on OSR that have been put threw with out citizens
involvement Goal 1, as stated by The Oregon State and Local rule of
Government for planning and Development. No Notices, No Reviews, No
Process, No Hearings. (They now sit next to Knife River).
Our community is EFU,OSR, RES, We are a community just on my road
of 35 Dwelling, We have all lived here for over 20, 30, 40 years
together as a Community of farming, self sufficiency of our Gardens
and livestock, Citizens of the FFA and 4-H programs , Good
Citizens. From generation to generation we raise our children
together.
We for 12 years we have complained and addressed the Permit
Conditions of Knife River, Then Rogue Agg, LTM only to be shut down
and hung up on by our County. The Jackson County Planning has
allowed them to put batch plants for Cement, and asphalt Polluting
our Air, Watershed The Rogue Basin. A Conditional land use permit
that was put in place for Surface mining for sand and Gravel to
be
ATTACHMENT C - PAGE 4
reclaimed back to farm lands and wet lands for the Migratory high
way along with environmental protection of our Protected
Historically Documented Fort Lane and The Table Rocks.
DEQ and DOGAMI have both found them in Violation of the permit,
Class 1 violation of state waters. Violations going back 18 years.
(Case #WQ/SW-WR- 2018-142) We addressed this to The County
Commissioner over and over and on October 3, 2018 Council Joe
Benton stated they would pull the land use permits if they were
found in violation. They were and Jackson County deferred, stating
the permits were not pulled so they stay. .. They still dump. The
point is they were never to be batch plants, It one of the
Conditions, Reclaimed to be in concurrent after mining, another
condition not enforced.
Our property and wells have been being destroyed, By Dewatering
they were to be protected by the Conditional land use permit
98-2SPRA/98-1-CUP (Knife River, Then Rogue Agg, LTM.) Our Community
is in the Permit. Instead they hand out free holding tanks, While
our E-mails and calls for help fall on deaf ears. The mining has
been over for years . The land is leased. They need to be moved to
industrial in white city as we live in a basin bowl . Our family’s
are now being sickened , our children can not go out and play and
the nose is unbearable.
Please DO NOT allow this Jackson County Power to Change EFU
standing lands or to operate under any more Conditional land use
Permits as they do not enforce them or follow State and Local
rules. Recently Oct 10,2018 Council voted on changing existing
Conditional land use permits already in effect , “ to say what they
want them to say” There is something extremely wrong when a County
clearly puts revenue over the public Health and Safety of its Long
standing Citizens and turns a blind eye to the many environmental
complaints that have affected our water source and Air of our
Community.
Thank you for the Notice , We had requested changes in the past but
were denied by e-mail. This was the first in 20 years.
ATTACHMENT C - PAGE 5
Mr. & Mrs. Stacey 541-423-5511 7667 Gold Ray road Central
point, OR 97502
[email protected] Sent from Mail for Windows
10
ATTACHMENT C - PAGE 6
From: Terry Thompson To: DLCD Landowner Notice Subject: amended
administrative rule Date: Monday, April 08, 2019 1:31:09 PM
Dear LCDC--I oppose the proposed amended rule (OAR 660-033-0130).
Apparently, the LCDC has the mistaken idea that it knows more than
the various counties concerned regarding solar power generation on
EFU lands. The counties involved are much better equipped to know
what is best for EFU lands within their counties than a commission
of mostly valley members with anti-progress attitude regarding
lands on the east side of the cascades.
Thank you, Terry Thompson 72948 Bunker Hill Lane Heppner, Or
97836
[email protected]
From: Doug Geltz To: LCD Rule Comment Cc: LLC Walters Family
Investments;
[email protected] Subject: Comments &
Questions RE: FARM LAND use for Solar PV Project use....Public
hearing on 5/23/19....land owner
comments due by 5/7/19 Date: Sunday, May 5, 2019 12:58:55 AM
Attachments: OR State land use Solar 5-1-2019.docx
Solar Plan on 58 acres.pdf
ATT: OR LCDC
This is to provide our formal comments and to request
clarifications to questions about EFU Farm Land use for Solar PV
projects in Oregon, and in Washington County. This relates to your
5/23/19, public hearings on potential Amendments to OAR
660-033-0130, for Rule changes by State LC&D Commission (OR
LCDC).
We're life long Oregon residents with family owning farm land in an
LLC in Washington Co. We have an ACTIVE solar project on our family
farm, underway since last Summer 2018. However, we're now delayed
and in HOLDING status on our project with Sulus Solar LLC, pending
the outcome of the 5/23, State Rules hearings...to see if / how /
when any rules changes may affect use of our EFU Farm Land and our
active Solar project here in Gaston Or. (?)
>> We need your clarifications on whether our comments &
data below, are the only things we are required to submit by
5/7/19, or if we need to also "attend" the 5/23/19 Public Hearings
in Salem, to represent our open questions and our requests related
to our Solar Project (as outlined in detail below) ?
>> See our comments, questions, and requests below, for your
review and timely reply (also included in attached Docx file , with
related PDF Site Map, below).
This is to "request LCDC response" to this E-mail, before the
5/23/19 public hearings in Salem, so that we may be better prepared
to understand the pending issues and rule change criteria which may
affect or land and our active solar PVproject with Sulus Solar
LLC.
Can you also verify the specific Date, Time & Location for the
5/23 public hearings on pending Amendments to OAR 660-033-0130, for
potential adoption / rule changes by State LC&D Commission (OR
LCDC).
Thanks for you reply and response, in advance.
Karen Geltz Walters Family LLC rep Phone # 971-227-8813
WALTERS FAMILY FARM… Status of our active Solar Panel Project on 12
acres of our family farm land:
By: Karen Geltz (family rep) 05/01/2019
TO:
[email protected] (Oregon Dept. of Land Conservation
& Development)
ATTACHMENT C - PAGE 8
5/1/2019 By: Karen Geltz (family rep)
TO:
[email protected] (Oregon Dept. of Land Conservation
& Development)
From: Karen Geltz, Rep. and 1/3 owner in Walters Family LLC. (
e-mail Karen @
[email protected] )
CC: Terry & Cyndi Walters, Terry is 1/3 owner in Walters Family
LLC (
[email protected] )
Charlotte & Lee Hines, Charlotte is 1/3 owner in Walters LLC (
[email protected] )
Marc Connolly, rep. for Sulus Solar LLC (
[email protected] )
Subject: Request for clarifications on pending State of Oregon
(Washington County), farm land use changes, which may impact our
ACTIVE solar project on 12 acres of our farmland in Gaston Oregon.
Request for "Grandfathering" exception status for our active
project, should rule changes affect the use of our EFU
non-irrigated farm land, for our planned solar (PV) project.
REQUEST... We request “grandfathered status” on 12 acres of our
family farm for an active solar energy collection project,
regardless of potential future land use rules changes (pending
results of a 5/23/19, public hearing), in either Oregon State or
Washington County. If final rule changes restrict or stop use, of
our farm land for our active Solar project, then we will fight for
"grandfathering status". If a "dual use"**of the 12 acres is a
condition of approval for solar use, then we are willing to
consider this option, or other dual use options.**
**NOTE: If required, we could sub lease of a 1/4 acre portion of
our converted farm land to support bee-keeping, for income and as a
duel use. We understand that bee keeping may be an approved dual
use option, but we would need to know more about this, other
options (IF we're " required" to have a dual use).
This is our Family's “formal request” to be allowed to continue our
ACTIVE project with Sulus Solar LLC for use of 12 acres of our
family farm land near Gaston Oregon (address 12395 SW Springhill
Road, Gaston, OR 97119). We are installing a solar energy
collection system, under a 25 year lease.
Attached is a site plan indicating Washington County Tax ID#
S236-00402 for our 58 acres of currently EFU rated / zoned farm
land (of which 12 acres will be converted to solar energy
collection use). See further project description in Background
& Status section, below. We are not sure if our EFU / "non-
irrigated" farm land is considered HIGH VALUE (Prime, Unique, Class
1 or 2, or "other" rating ?), or if it will be affected by proposed
land use Rule changes related to solar project use ? >> Can
you verify our 58 acre Tax Lot "classification / rating" status ?
...or, can you refer our request to someone who can ?
We've been advised by David Hunnicut with the Oregonians In Action
Group, to formally write State of Oregon LC &D offices
regarding our “active project” status and to request HOW our land
and solar project may be affected. We are asking for a
“grandfathered” status to allow us to complete our active solar
project. >> Can such Grandfathering status be secured,
regardless of potential “future” land use rule changes which may
follow the April 2019 public hearing (or "future decisions")
regarding farm land use for solar panel collection projects ?
>> Please advise us...
Page 2 of 4
We understand that we must submit our formal "comments" (or written
requests ?), to OR LCD Admin. offices before 5/7/19. Your rep. Tim
Murphy provided a contact & mailing / e-mail address for our
use in forwarding this request (via this E-mail only now... please
advise if we need to send "registered" letter by the 5/7
deadline).
Further, we understand that we must "attend" State of Oregon public
hearings in Salem on 5/23/19 (and/or any Wash. Co. public
hearings), in order to formally represent our interests and
advocate for the continuance of our active solar project under a
“grandfathered” status (IF land use rule changes do affect our farm
land status ?). >> Please advise us if this written request
is all we need to submit, of if we MUST attend the 5/23, meeting to
discuss our specific interests, project status, and request for
"grandfathering status, in the public hearlngs ? >> Also,
will other Washington County public hearings be held in the future
(related to adopting State rule changes) ? Please advise...
Please share this formal "e-mail " & attached PDF map, with the
appropriate State or Oregon (or Wash. Co.) administrative group(s),
or individual representatives who can “record and act upon” our
formal request and reply to us on clarification questions, above.
If this format cannot be acted on, then advise us in a timely
manner, as to WHO we can talk to about our project status, WHAT
documents we must submit and to who, and WHICH public hearings /
dates we must attend to safeguard our active solar project, now
planned on our farm land.
>> If this is NOT the proper method to communicate with State
(and/or Wash. County) Administrative officials responsible to
oversee and respond to public requests on this issue, then
otherwise advise us in a timely manner (prior to public hearing
dates), or have someone in authority at State or County offices,
advise us on proper steps and timing to formally address our
request for grandfathering protection based on our specific status
(as outlined in BACKGROUND & STATUS summary section
below).
Your assistance and timely reply will be appreciated...
Thank-you,
(e-mail Karen @
[email protected] ) Cell Ph. # 971-227-8813 Home
Ph. # 503-642-4916
Attachment: Site plan indicating Tax Lot ID # S236-00402 for our 58
acre EFU farm land parcel (see location of the proposed 12 acre
solar project...at east end of the 58 acre parcel).
BACKGROUND & STAUS ON OUR SOLAR PROJECT:
In spring 2018, we were approached by a Sulus Solar LLC
representative Marc Connolly, about our interest in exploring the
possibility of using ~12 acres (out of a 58 acre parcel) of our
flat / "non-irrigated" family EFU farm land for a solar energy
collection project. The site is located south of our family farm
address... 12395 SW Springhill road, Gaston Oregon 97119. The 12
acre solar project area will be located at the east end of a 58
acre plot, and immediately adjoining Springhill Road (access to a
PGE power line exists at road, and an entry point to the solar site
can be planned off Springhill road).
Page 3 of 4
There are no immediate neighbors or properties which can be
negatively affected by such a solar panel installation. A plot map
for the 58 acres, with tax lot # S236-00402, is attached for
reference and shows the location of the 12 acre solar site,
adjacent to Springhill road on the east, and private drives on the
north and south. Entry to the solar site, will be from Springhill
road, so no access easements will be required and no neighbor's
drives or properties will be affected by the solar project .
The 12 acres in question has been leased for years to local farmers
to plant & harvest wheat or clover crops (@ a lease rate of
~$120 / acre / year). This land is subject to annual flooding so
bad that we had to recently work with our farmer to add new "drain
tiles" west of the solar area (drainage slopes to west). Our
farmer's goal was to increase crop yield and productivity on the
east end of the 58 acre plot, but crop yields have only marginally
improved. As a farming family, we've never considered this 12 acre
area to be as productive as the balance of the 58 acre parcel to
the west. Our Farmer leases the whole 58 acres on a multi-year
contract, but has NO objections to using this 12 acres for a solar
collection system (he has indicated the solar project will not
impact his farming operations).
Our family is very interested in supporting “alternate Clean Power
generation” in Oregon & Wash. Co., This is a more "beneficial
use" of this small 12 acre (wet) area, than use for marginal crop
production. We also need the added ~ $ 10 K annual lease “income”
this solar project will return to our family over a 25 year
lease...Totaling + $ 250 K Net difference in income, over farming
use (over the lease duration).
We OK’d Sulus Solar LLC to do their initial investigations with PGE
for site feasibility and their capacity to accept power generation
onto their power lines & grid now along Springhill Road. On
7/19/18, we signed a “letter of interest” (LOI), which allowed
Sulus Solar LLC to pursue additional study for solar design /
layout on site, to verify any County requirements for land use, to
seek capital funding sources for their solar panel project, and to
develop more detailed contract terms for a 25 year lease
agreement.
We received positive news from Sulus Solar LLC in Aug.'18... the
project was deemed as “feasible” and we could proceed into final
contract / lease term negotiations. We negotiated an annual lease
rate of $ 1200 / acre / year, which far exceeds the $ 120 / acre /
year income we now get from marginal farming on this 12 acre plot.
We have reviewed lease contract terms & conditions and talked
to several other farm land owners in Oregon who have either
completed, or have similar active, solar projects with Sulus Solar
….all with positive results. We also checked the BBB and Oregon
State LLC status & ratings for Sulus Solar and other LLC(s)
which were involved with such Oregon projects…also with positive
results.
We hired a McMinnville Attorney Walter Gowell in Dec. '18, to
assist in our review of proposed contract terms. Walter had been
involved with several similar solar projects, representing land
owner interests. He was very helpful in contract review &
advice, in suggesting owner protections, and in preparing key
negotiating points we wanted to address as “conditional” for
signing a final Lease/ Contract . To date, we have expended $ 1950
in legal fees + misc. costs, and countless family hours supporting
efforts to proceed with this solar project on our family
land.
We sent our final contract negotiation points to Sulus Solar LLC…
for their feedback and to proceed with final contract negotiation
& signing. However, on 2/27/19, we were notified by Sulus Solar
LLC rep. Mark Connelly, that the State of Oregon (and Counties ?)
were considering LIMITING the amounts and types of farm land which
could be converted from farming use to solar energy collection / PV
use. He
Page 4 of 4
understood that the State & Counties would be reviewing the use
of “high value" farm land for alternate solar collection PV
projects. He understands that Rule changes arising from Public
Hearings, could limit the number, size, or regional density of such
PV projects inside the State (or Counties which may adopt State
land use rules ?). As a result , Sulus Solar LLC put our solar
project in a HOLDING STATUS for final negotiations or contract
signing, pending results & conclusions from upcoming State /
County public hearings and clarity on timing of final
administrative actions for Rules changes & dates, regarding
this land use issue.
Both our family and Sulus Solar LLC, need a formal reply from State
/ County officials that we can proceed with our active project,
or....if we must continue in "HOLD status" for specific rule
changes, effective dates, and decisions IF Wash. Co. will / will
not, be adopting such State Rules for application to our farm land
and solar project. If the risk is high that Wash.Co. will adopt and
apply rule changes and impact or stop our project, the we will
pursue our "grandfathering" options or other remedies with the
State or County, as required for formal decision &
documentation. We hope you understand our need for clarify and
certainty on this issue, and our desire to move ahead with our
proje