The Oregon Court of Appeals has overturned a ruling that blocked a solar facility's expansion in Crook County because the ruling's legal reasoning was flawed.
The county approved increasing the solar project’s size last year from 320 to 654 acres, which was challenged by the Oregon Department of Fish and Wildlife.
Earlier this year, the state’s Land Use Board of Appeals agreed with ODFW’s arguments that the development plan didn’t live up to key requirements for wildlife habitat mitigation.
According to LUBA, solar projects must fully comply with these wildlife plan requirements even if they’re approved under a streamlined county process for facilities below 1,920 acres, which was created by lawmakers in 2019.
Larger projects must still be authorized by the state’s Energy Facility Siting Council, which is considered more time-consuming and complex.
“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,” LUBA said.
The Court of Appeals has now ruled that LUBA’s interpretation of the law was incorrect, since it’s “plainly evident that the county is the decisionmaker” under the streamlined process, rather than ODFW.
Solar projects must meet all the ODFW's requirements for wildlife mitigation plans only when the state agency is the permitting authority for a project, the appellate ruling said.
“That is not the case here, where the development action is neither ODFW’s own action nor is it an action in which ODFW has statutory authority to require mitigation measures,” the ruling said.
The Court of Appeals said the county believes that ODFW wants to usurp its authority while the state agency fears that mitigation plan for solar projects won’t fully account for the impacts to wildlife.
Although not every element of a mitigation plan must be approved by ODFW in this situation, a plan still cannot conflict with the state’s overall mitigation policy for wildlife, the appellate ruling said.
The Court of Appeals said it does “not endeavor to provide a conclusive, all-encompassing construction” of what mitigation plans must contain under the streamlined county process.
However, the appellate court offered several legal “observations” about the state’s mitigation policy and remanded the matter to LUBA to sort out.
Peter Watts, Crook County’s attorney, said the appellate ruling is “consistent with what the legislature had intended” in passing the streamlined county approval process for certain solar facilities.
“My hope is that ODFW recognizes that Crook County has a history of doing these projects the right way, and it is in their economic interest to continue doing so,” Watts said in an email. “I hope that there would be a little more trust going forward, and less litigation.”
The ODFW appreciates the "clarity" provided by the ruling, which said that mitigation plans must still be "complete and thorough," provide "durable mitigation" during a project's life and comply with other standards, said Sarah Reif, the agency's energy coordinator.
"Our goal is to work cooperatively with counties and the renewable energy community on a path forward that allows for growth in renewable energy solutions to our shared climate problems, while protecting and enhancing Oregon’s fish and wildlife and their habitats," Reif said in an email.