On August 31, 2023, the Oregon Energy Facility Siting Council (the “Council”) issued a final order approving a site certificate for the Nolin Hills Wind Power Project (the “Project”), a significant wind, solar, and energy storage facility to be built in Umatilla County (the “County”). The decision rejected attempts by the County Board of Commissioners to apply a local two-mile setback requirement and ended the site certificate process that began back in September 2017.
Energy facilities that exceed certain thresholds require a site certificate issued by the Council.¹ This process involves some interplay between local land use regulations and Oregon’s statewide planning goals. It also allows an applicant to choose between obtaining land use approval from the local government or a determination that the proposed facility complies with the statewide planning goals directly from the Council.²
Here, the applicant elected to have the Council determine compliance with Oregon’s statewide planning goals. In doing so, one consideration is whether the “facility complies with applicable substantive criteria from the affected local government's acknowledged comprehensive plan and land use regulations that are required by the statewide planning goals[.]” ORS 469.504(1)(b)(A) (emphasis added).³
In its efforts to challenge the proposed Project, the County Board of Commissioners identified Umatilla County Development Code (UCDC) section 152.616(HHH)(6)(a)(3) as one of the “applicable substantive criteria.” This code section requires a two-mile setback between turbine towers and rural residences, a standard that the proposed Project would not meet.
The Council evaluated the legislative history of the local setback standard and determined that it was intended to preserve property values and protect against noise and visual impacts. It then evaluated each of the statewide planning goals and determined that none of them “require counties to adopt setbacks between wind turbines and residences or take measures to preserve property values or protect against noise or visual impacts[.]” In doing so, the Council noted the difference between being “consistent with” and “required by” the statewide planning goals.
The guidance provided in this final order will help both applicants and local governments participate more effectively in the site certificate process at a time when large-scale renewable energy facilities are increasingly in demand.
The 60-day appeal deadline has now passed, allowing the Project to move forward.
¹ ORS 469.300(11) & 469.320.
² ORS 469.504; OAR 345-022-0030.
³ In certain circumstances, a facility may be in compliance with the statewide planning goals despite noncompliance with the local substantive criteria. ORS 469.504(1)(b)(B)-(C); OAR 345-022-0030(2)(b)(B)-(C).
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
