Energy Infrastructure and Siting
Committee Newsletter
Vol. 1, No. 1
OREGON WEIGHS POTENTIAL CONFLICTS
BETWEEN ENERGY DEVELOPMENT AND
ARABLE LANDS
David J. Petersen
Oregon is well-known for its unique approach to land
use regulation. S.B. 100—the state’s landmark land
use law in the early 1970s—established a
complementary system of both state and local control,
whereby local governments develop and apply local
land use regulations within a larger framework of
statewide planning goals and state administrative
oversight. This duality can create friction, however,
when local attitudes about development issues conflict
with state policy.
Regulation of energy facility siting in Oregon follows a
similar pattern, with roles for both local land use
decision makers and a statewide Energy Facility Siting
Council (“EFSC”). And like other land use matters,
energy facility siting can trigger friction between local
and state interests. Recently, this friction played out in
two bills that the Oregon legislature adopted with
respect to the siting of large solar energy projects and
the siting of transmission lines connecting rural energy
facilities to the transmission grid.
Solar Facility Siting
Oregon’s land use regulatory scheme places a high
priority on the preservation of agricultural land. Recent
improvement in the economic viability of solar energy
has increased pressure to convert agricultural lands to
solar energy facilities, and Oregon policymakers have
Energy Infrastructure and Siting Committee, July 2013
July 2013
responded by trying to develop rules that direct solar
facilities to lands that are less valuable for agriculture.
A multiyear conversation between policymakers and
advocates for solar energy and agriculture resulted in
the recent adoption of statewide administrative rules
that create incentives to site solar facilities on
“nonarable” land. Under these rules, land is
“nonarable” if it is (1) not cultivated; and (2)
comprised of nonarable soils. OAR 660-0330130(38)(a). Nonarable soils include lower-quality
soils in classes V through VIII as established by the
U.S. Department of Agriculture (“USDA”). However,
the rules also allow local governments to designate
other land with higher-quality soils (USDA classes I
through IV) as nonarable based on evidence of past
use and localized knowledge of agriculture patterns in
the area. OAR 660-033-0130(38)(d).
These rules apply to all local governments statewide
making siting decisions on solar energy facilities.
Under the state’s dual system for siting energy
facilities, however, local governments do not site all
solar facilities. Instead, until this legislative session, a
solar energy facility with a nameplate capacity of 105
MW or using more than 100 acres of land needed a
site certificate from EFSC, but EFSC regulations did
not require an evaluation of whether or not the site is
arable. ORS 469.300. With the passage this June of
H.B. 2820, however, the rules have changed.
Specifically, H.B. 2820 did the following:
•
Eliminated the 105 MW nameplate capacity
threshold for EFSC jurisdiction over a
proposed solar facility;
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•
•
Kept the 100-acre threshold for EFSC
jurisdiction over solar facilities on arable land,
but increased the threshold to 320 acres for all
other lands; and
Defined arable land as land that is
predominantly cultivated and composed of
soils in USDA classes I through IV.
Notably, unlike OAR 660-033-0130(38), H.B. 2820
does not include a provision allowing local
governments to designate land with higher-quality soils
as nonarable, based on local knowledge, history, and
conditions. This exclusion was opposed by developers
and rural counties with the best solar energy potential,
who viewed the “local exception” option as important
because, in their opinion, local decision makers rather
than state or federal bureaucrats are best suited to
understanding local conditions and directing solar
projects to the sites best suited for them. These parties
also believed it unnecessary and confusing to have two
different definitions of arable land, both applied in the
context of solar energy facility siting, but one of which
has the “local option” exception and the other does
not. These parties urged legislators, without success, to
incorporate the OAR 660-033-0130(38) definition of
arable lands into H.B. 2820 for purposes of
determining whether EFSC has jurisdiction over a
particular solar energy proposal.
Transmission Line Siting
The use of arable lands for energy facility siting
appeared again in H.B. 2704 concerning transmission
lines that are proposed in connection with an energy
project. These are often referred to as “gen-tie” lines
because they connect generation facilities to the
transmission grid. H.B. 2704 also became law this
past June.
Under H.B. 2704, gen-tie lines in agricultural areas are
subject to one of two tiers of local land use review. A
quicker, less rigorous and more certain standard of
review applies to gen-tie lines that can meet a list of
four criteria designed to encourage siting of gen-tie
lines on less valuable farmland. If the four “fast track”
criteria cannot be met, then a more rigorous review
applies that includes a mandatory analysis of
Energy Infrastructure and Siting Committee, July 2013
reasonable alternatives. H.B. 2704, sections 2(3) and
2(4).
Among the criteria for the “fast track” is a requirement
that the gen-tie line is not sited on arable land. H.B.
2704, section 2(3)(a). This bill contains no express
definition of arable land, but because the bill does not
apply to EFSC, interpretation of the proposed statutes
would be governed by the existing administrative rule
with the “local exception” option. OAR 660-0330130(38). Thus, H.B. 2704 perpetuates the
unfortunate dichotomy between state and local solar
energy siting decisions, with different standards
applicable to the determination of whether or not the
site is arable depending on whether EFSC or a local
government is making the siting decision.
Although the Legislature ultimately did not act on it, the
position of the counties and the solar developers is
persuasive. There are a myriad of reasons why land
may be better suited for solar energy than agriculture
other than the classification of its soils, and local
governing officials are in the best position to know that.
Having local officials make that determination for an
EFSC permit may have presented some practical
challenges, namely that EFSC would have had to refer
the initial determination of the arability of the site to the
affected local government before EFSC could
determine whether or not it had jurisdiction over a
proposed project. This two-step process might have
proven cumbersome and time-consuming unless
adequate streamlining regulations were adopted. This
is, however, a hurdle that could have beenovercome,
and it would have been preferable to the outcome,
where different definitions of arability apply based on
who is making the siting decision and in what context.
This is not an “either/or problem.” The goal of state
policymakers should be to both protect agriculture and
encourage solar energy development to the maximum
extent possible, and this goal is best served by relying
on those with the most experience and knowledge of
local conditions in determining the best sites for each
use.
David J. Petersen is a partner with the Portland,
Oregon, law firm of Tonkon Torp LLP. He represents
landowners, developers, and opponents in a wide
range of real estate and land use matters, and he
chairs the firm’s Energy Practice Group.
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