In the latest legislative session, Oregon Governor Tina Kotek signed two new bills directly impacting the siting and development of photovoltaic solar power generation facilities. Oregon House Bill (HB) 3179, which expands county jurisdiction over the siting of solar facilities, and HB 3409, which provides for the development of new solar facility siting rules. For renewable energy leaders, these bills may impact solar facility development, including changes in jurisdiction, regulatory compliance, project viability, local engagement and opportunities to shape siting rules and criteria.

Oregon HB 3179 increases the minimum size for a proposed solar facility to fall under the jurisdiction of Oregon’s Energy Facility Siting Council (EFSC). The EFSC is a state board that oversees the siting of large energy facilities in the state, ensuring these projects adhere to all state and local statutes, rules, standards, ordinances, permits and other approvals. Energy facilities are subject to EFSC jurisdiction if they are above a certain size. For solar facilities, EFSC jurisdiction hinges upon the soil types where the facility will be sited and the number of acres used, occupied or covered by the facility. If a proposed facility exceeds the thresholds, it must be reviewed by EFSC rather than the county where the project will be sited.

By increasing the minimum acreage thresholds, HB 3179 effectively decreased the number of solar facilities that will be subject to EFSC jurisdiction. On high-value farmland the threshold for EFSC jurisdiction rises from 160 acres to 240 acres. High-value farmland includes lands predominately (more than 50%) composed of high-value soils, as well as a wide range of other specifically defined lands. For predominantly cultivated land—that is, tracts of land where more than half of the land is under cultivation—or certain higher quality uncultivated lands, the jurisdictional threshold jumps from 1280 acres to 2560 acres. For other exclusive farm use lands, the limit was raised from 1920 acres to 3840 acres.

Solar facilities should utilize these new acreage thresholds to determine if they need to obtain a site certificate from EFSC or if jurisdiction for siting will lie with the county or municipality where the facility is proposed. By increasing the upper limits, HB 3179 effectively expands county jurisdiction over siting solar facilities. This shift has been celebrated by counties, who generally desire control over the facilities sited within their boundaries.

Regardless of siting jurisdiction, solar development on more than 12 acres of high-value farmland still requires a developer to apply for, and the reviewing body take, a Goal 3 exception, further described in the following section. Goal exceptions are, by their nature, costly and difficult to obtain and nothing in HB 3179 alters this barrier to solar development on high-value soils. However, HB 3409 does require the Land Conservation and Development Commission (LCDC) to adopt certain new regulations incentivizing development east of the Cascades.

Oregon’s latest climate action bill directs LCDC to adopt rules for siting solar facilities and creates a rules advisory committee for Siting Photovoltaic Solar Power Generation Facilities. LCDC is a body of seven unpaid volunteers appointed by the Oregon Governor who oversee land use planning within the state. The commission adopts Statewide Land Use Planning Goals, implements rules and ensures local plan compliance with those goals. It also coordinates state and local planning. Under the direction and guidance of LCDC, the rules and the statewide planning program are implemented by the Department of Land Conservation and Development (DLCD).

In the 1970’s, LCDC’s initial efforts were focused on developing and adopting 19 statewide goals and guidelines addressing land-use planning, resource conservation and development. The goals cover a range of topics including citizen involvement, land use planning, agricultural lands, forest lands, natural resources and environmental quality.

One of those goals, Goal 3, provides for the protection of agricultural lands, so LCDC has developed rules to protect lands zoned exclusive farm use (EFU). Most non-forested rural lands are zoned EFU, so the rules are frequently implicated in the development of solar facilities. EFU zoning has changed over the years. Originally, only 12 uses were allowed in EFU zones. Today, the list has grown to more than 60 allowed and conditional uses, including solar facilities, but Goal 3 still protects agricultural lands by imposing significant limits on some of those uses. For example, solar facilities are generally limited to a maximum size of 12 acres if developed on high-value farmland.

Goal 2 allows a county to take an “exception” to allow a use that does not comply with goal requirements usually applicable to a property. LCDC has provided rules of interpretation for the Goal 2 exception process. A Goal 2 exception may be taken for rural industrial development, if certain conditions are met, including that “the use is significantly dependent upon a unique resource located on agricultural or forest land.”

There previously was ongoing uncertainty around whether solar facilities could qualify as a rural industrial use, but HB 3409 makes explicit that a local government may “consider1000 Friends of Or. v. Jackson Cty.pathway to obtain a Goal 3 exception that does not require “a demonstrated need for the proposed use or activity, based on one or more of the requirements of goals 3 to 19.”

Solar developers must still justify the Goal exception, including that the “use would have a significant comparative advantage due to its location … which would benefit the county economy and cause only minimal loss of productive resource lands.” However, the clarification provides an alternative pathway for counties wishing to approve the development of solar facilities on EFU-zoned lands.

HB 3409 also requires LCDC to create solar siting criteria, which may or may not be mandatory, and identify “characteristics” of lands in Eastern Oregon “best suited for counties to allow, encourage and incentivize” the development of solar facilities. The law also creates a 17-person rules advisory committee (RAC) to assist with the development of these rules, with the members to be comprised of various stakeholders. The RAC will be administered by DLCD and RAC members must represent the interests of persons likely to be affected by the rules. All meetings will be noticed and open to the public, in accordance with Oregon’s open meetings laws.

While it seems clear that the intent of HB 3409 was to facilitate the development of solar facilities on EFU-zoned lands, the law provides LCDC broad authority to establish and DLCD to implement solar facility siting criteria that may either support or inhibit solar facility development. Given LCDC’s broad authority to draft the final criteria, members of the RAC may have a particularly significant impact on the final rules. As of the time of publication, applications for RAC membership are being accepted by the Governor’s office, with the RAC likely to be convened in early 2024.

Expanding county authority over solar siting criteria and clearer criteria from LCDC could provide a more predictable path toward permitting new solar facilities in Oregon. County submission requirements tend to be fewer and more streamlined, but it remains to be seen which counties will respond to the broader authority by supporting the development of solar facilities. Likewise, while developers will generally appreciate clearer criteria from LCDC, time will tell if those criteria will be balanced in a way that encourages the development of solar facilities.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.