rulemaking – solar power generation facilities on …

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].
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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
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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.
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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.
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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
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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.
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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.
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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
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
(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
(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
(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
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
(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
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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.
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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.
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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
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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
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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.
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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
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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.
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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
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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
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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.
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]
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
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.
Mr. & Mrs. Stacey 541-423-5511 7667 Gold Ray road Central point, OR 97502 [email protected] Sent from Mail for Windows 10
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)
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...
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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).
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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
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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