A solar project expansion approved in Oregon’s Crook County falls short of wildlife habitat mitigation requirements and must be reconsidered, according a state land use board.
The Land Use Board of Appeals has ordered the county to reconsider its authorization of the West Prineville Solar Farm’s expansion from 320 acres to 654 acres on land zoned for exclusive farm use.
The state’s Department of Fish and Wildlife is correct that the project’s mitigation plan doesn’t meet several key requirements intended to prevent the “net loss of habitat quality and quantity,” according to LUBA.
The agency argued the solar project does not adequately map out sites meant to mitigate for habitat loss, ensure the durability of mitigation measures or identify performance and success criteria.
The solar developer, which intervened in the case, countered that the county has wide discretion in determining which specific components of ODFW’s mitigation policy need to be included in a plan. LUBA has now disagreed, ruling that such plans must be consistent with all the agency’s requirements.
According to LUBA, the agency’s interpretation is supported by the plain language of state law and the legislative history of a bill that gave counties more jurisdiction over certain solar facilities.
The county does not get to decide which statewide wildlife requirements must be included in a project plan, the ruling said. “The legislature did not limit the universe of rules with which an applicant must demonstrate consistency to only those rules that the county determines apply.”
Under the 2019 bill, county governments were allowed to approve certain projects that would previously have to be cleared by the state’s Energy Facility Siting Council, including solar facilities of up to 1,920 acres on uncultivated, lower-quality soil.
Although lawmakers intended for House Bill 2329 to “streamline the permitting process and reduce permitting costs,” it does not reduce the ODFW’s mitigation requirements for wildlife habitat, the LUBA ruling said.
“The legislative history does not demonstrate, as intervenor argues, that the legislature intended to weaken habitat protection or to waive compliance with the Mitigation Policy,” the ruling said.
LUBA’s ruling will “functionally shut down” permitting for mid-tier solar facilities, delaying projects for years and undermining investment in renewable energy, said Jake Stephens, CEO of NewSun Energy, an investor managing the project’s permit.
“This is a story of agency overreach, with ODFW using appeals to create authority that the legislature explicitly denied them in the HB 2329 drafting process,” Stephens said in an email.
It’s a misrepresentation by the agency and LUBA that the county didn’t require sufficient mitigation, since the plan was “consistent in type and scale with ODFW’s own recommendations” and involved “perhaps the most rigorous” conditional use permit review for any solar project in the state, he said.
Crook County was surprised that ODFW challenged the project’s approval because the agency agreed to the mitigation plan during a public hearing, said Peter Watts, the county’s attorney.
The ODFW’s opposition likely stems from its uncertainty over the level of mitigation it wants, as well as its discomfort with expanded county jurisdiction over solar projects under HB 2329, he said.
“I think they’d like control over habitat mitigation in the process. So, essentially like veto power,” Watts said.
LUBA’s decision helps to clarify the procedures and expectations for solar facilities authorized under HB 2329, said Sarah Reif, energy coordinator for ODFW.
“It makes it a lot more clear for future applicants what standards they need to meet in terms of mitigating wildlife impacts,” she said.
Unless the county or developer plan to appeal, ODFW looks forward to helping develop a wildlife mitigation plan that meets the requirements, Reif said.
“There’s still an opportunity for this project to put forward an application that meets the wildlife standards,” she said.
1,000 Friends of Oregon, a farmland preservation nonprofit, had opposed HB 2329 because it feared solar facilities would be held to less rigorous requirements.
“We were concerned county level decisions wouldn’t be as thorough as state level decisions,” said Jasmine Zimmer-Stucky, the group’s working lands engagement coordinator.
The LUBA ruling shows that state agencies should remain involved in the approval process and points to the need for mapping to help solar developers avoid litigation and gain certainty, she said.
“The decision reinforces that if we mapped in advance where these facilities should go, we could avoid these kinds of conflicts,” Zimmer-Stucky said.